IN Algeria, Morocco and Turkey, their family laws recognise equality between the husband and wife and specify mutual respect and kindness in marriage. In Afghanistan, Bahrain (Shia), Bangladesh, Egypt, Iraq, Morocco, Pakistan, Tunisia, and Turkey, no wali (male custodian) is required for a woman to get married. In Egypt and Pakistan (Sindh province), the minimum age of marriage for both men and women is set at 18, without any exceptions. Those who conduct or register any marriage of a person below 18 commit an offence and can be punished.
In Kyrgyzstan, Tajikistan, Tunisia, Turkey, and Uzbekistan, polygamy is prohibited. In Afghanistan, Bangladesh, Bahrain, Egypt, Iraq, Jordan, Lebanon (Sunni), Mauritania, Morocco, Oman, Pakistan, Palestine (West Bank), Qatar, Syria, United Arab Emirates, Yemen, a husband may delegate his unilateral right of divorce to his wife through the marriage contract, thus permitting her to pronounce talaq upon herself (talaq-e-tafwid/‘esma).
In Algeria, Brunei, Morocco, Saudi Arabia and Tunisia, mothers with custody of their children can also obtain guardianship rights over them. In Indonesia, Singapore and Turkey, the guardianship of children is based on their best interest.
These are countries with family law provisions governing Muslims that are different from Malaysia’s. But that does not make them unIslamic. Just as the fact that Muslims from other countries find it enlightening that in Malaysia, Singapore and Brunei, a woman’s contribution as wife and mother entitles her to a share of the matrimonial assets acquired by the husband. Few other Muslim countries have such a provision.
This diversity of laws shows the richness of the Muslim legal tradition. Diversity of interpretations, diversity of juristic opinions, diversity of culture, tradition, and national contexts shape laws and policies, even in the name of Islam.
Thus to continue to play the broken record and accuse those who campaign for reform of discriminatory and harmful laws and practices as going against the teachings of Islam as deviants and worse, as infidels, is the bankrupt tactic of demagogues who see religion as nothing more than a football to be kicked around to instil fear and sow discord, for nothing more than political gain.
It is time that Malay Muslims who claim to love Islam recognise these actors for who they are. It is time for those who think that there is only one interpretation and one understanding of Islam and that every law made in the name of Islam is the divine word of God open their minds and embark on their own personal jihad to discover the richness of Islamic legal thought and tradition.
If Islamic law is considered divine law, why are there differences not just among Muslim countries, but even among the different states of Malaysia? Obviously, these laws, these fatwas, these practices are imposed by human beings who pick and choose what they want from the diversity of juristic opinions that exist to serve different interests in different contexts. Contexts change, interests change, realities change, thus laws too should change to reflect changing times and circumstances to ensure that justice always remains the objective and the outcome. Alas, that seems like rocket science to some.
How many times have the Islamic Family laws of Malaysia been amended? And yet when women’s rights groups demand for amendments to recognise equality and non-discrimination, they are labelled as deviants who want to change the word of God. Because Islam is a religion that treats women as inferior to men or because the demagogues conveniently hide behind the sanctity of religion to maintain control over power and privilege and distribution of material wealth and rewards?
So in the end the issue really is not whether these laws made in the name of Islam can be changed or not. Of course they can. The issue is whether women should be treated as human beings of equal worth and dignity as men. For some people, that remains a profoundly challenging notion, even in the 21st century! The conservatives within Malaysian society believe women are inferior to men, and yet the realities around them show that women are moving ahead, and are as capable as men, if not more. What better way to resist the demands for reform of discriminatory laws and practices than by labelling these women who dare to speak out as enemies of Islam.
As the UN system, governments and civil society throughout the world prepare for major global events next year to celebrate the 25th anniversary of the Beijing Platform for Action, I cringe that the blame on why so little progress has been made in laws and practices that discriminate against women will be laid at the doors of Islam. That it will be the Muslim countries that will come out among the worst in the report card on progress on issues such as child marriage, polygamy, equal right to marry and to divorce, inheritance, honour killings, marital rape, FGM, LGBT rights.
The list of discriminatory and harmful laws and practices that plague women and girls go on. Culture, tradition, patriarchy are major culprits, but it is Islam that will be blamed because those who refuse to budge in the face of changing realities on the ground fly the flag of Islam to silence dissenting voices and instil fear and anxiety in the hearts of God-fearing men and women, and among politicians who fear loss of support.
I would like to see this Pakatan Harapan government summon the political will and courage to take the lead in the Muslim world in recognising the equality of and non-discrimination against Muslim women as a fundamental policy. Over the decades, the previous administration did much to recognise equality between non-Muslim men and women. The Law Reform Marriage and Divorce Act was amended to recognise equality. The Guardianship of Infants Act was amended to grant mothers equal rights to the guardianship of their children. The Distribution Act was amended to ensure that wives and daughters inherit equally. But all these amendments were not extended to Muslim women. If this is not bad enough, the Insurance Act was amended so that Muslim wives and daughters who are named as beneficiaries are deprived of their rightful share in favour of men in the family according to faraid rules. The same applies with EPF monies where the named beneficiaries act only as trustees.
In the name of Islam, Muslim women have been deprived of their constitutional right to be treated as equals before the law.
The time for using Islam as an excuse is over. The scholarship to recognise equality, justice and non-discrimination for women in Islam is burgeoning by the day, emerging from all corners of the Muslim world, and from Muslim scholars living in the West. Activism supporting law reform at the global, regional and national levels is building. Even Al-Azhar University has formed a committee to undertake reform of the discriminatory personal status code in Egypt. The Islam rahmatanlilalamin of this government must embrace the dignity and worth of women as equal to men.
Malaysia, as an upper middle income country, with a new government voted into power on a reform agenda is under global scrutiny. Much is expected of this young government to show its leadership to the world that a multi-ethnic Muslim country can move forward to embrace human rights, diversity and differences, and end laws and practices that discriminate against women.
Those who have for years been engaged in human rights and women’s rights work and in democracy-building that eventually led to the success of May 9, are impatient for change.
We are ready to work with this government we elected into power to enable it to implement the Concluding Observations from the Cedaw (Convention on the Elimination of all Forms of Discrimination Against Women) Committee and Recommendations from the Universal Periodic Review process. And to present to the world the model Muslim country that Malaysia can truly be.