FEER : The Modern Malay Woman’s Dilemma

The Modern Malay Womans Dilemma
By Rose Ismail
Far Eastern Economic Review March 2006 Issue

The paradox of modern Malaysia was on full display last December. The
government pushed a bill through parliament that is potentially
damaging not only to Muslim women, but also to the carefully nurtured
image of the country as a moderate and enlightened Islamic state. Yet
a growing movement has belatedly sprung up to oppose the law. The
resulting battle is symbolic of Malaysias struggle to find an
accommodation between traditional beliefs and respect for human
rights.

The debate came to full boil in the Senate, where usually biddable
legislators reacted to the Islamic Family Law (Federal Territories)
(Amendment) Bill 2005 with such vehemence that it startled the nation.
They demanded a full explanation from the minister charged with
religious affairs and interrogated him on the finer points of the law.
Dissatisfied with his explanations, 16 women senators refused to
support the bill and assented only after they incurred a sharp rebuke
from the party whip.

The senators finally relented at 11 p.m. on Dec. 22, an hour before
parliament recessed for the year. But an anxious public troubled by
the law began to pose awkward questions: Why had parliament pushed
through a flawed law? Who drafted it and why werent stakeholders
consulted? How did the cabinet approve the bill without checks or
brakes? Why was the bill hardly debated in the lower house? Ultimately
the controversy forced the government into a partial climb down.

In fact, the law should not have come as such a surprise, and the
debate was long overdue. In January 2003, the cabinet unexpectedly
directed all 13 states, as well as three federal territories (which
together count as one additional state) to adopt the same family law
to streamline Islamic family matters. Islam is a state matter in
Malaysia, and the federal government has long desired to standardize
the law. In late 2005, after most states had adopted the family law
without opposition, parliament was expected to amend the Federal
Territory family law along the same lines.

At the heart of the controversy are five amendments giving a Muslim
man new powers to freeze and claim a share of property belonging to
his wife. They also enhance his rights to divorce and allow him
greater flexibility to contract polygamous marriages. For the Muslim
woman, the amendments make marriage very risky, as they ease
conditions for husbands to marry another wife; if he does, he is
allowed a share of his first wifes property, presumably for the
benefit of his second marriage. A husband can also stop his wife from
accessing her bank account, as well as any property in her name.

In the event of divorce or the husbands taking of an additional wife,
the (first) wife must choose either to receive maintenance from her
husband or divide their joint property. Before these amendments, a
Muslim woman in Malaysia would have been entitled to both maintenance
and a portion of the joint property, as mandated by Islam.

In every way, the law stands at odds with reality. In Malaysia today,
women play crucial roles in the public and private sectors. The
central bank governor and the chief justice of the High Court are both
women, and a number of federal and state government departments are
headed by women, as are public-listed companies. In almost every field
and endeavor, including sending a Malaysian into space, women work
competently beside men.

Very few Malaysian women can accept a law that places them a step
below men. Yet, this was what the amendments impliedunder Islamic law
in the 21st century, Malaysian Muslim women are subordinate to men.

Interestingly, gender equality was cited as a factor in the drafting
of the family law. In the stormy Senate session, the minister of
religious affairs took pains to explain why men were given fasakh,
which involves a judicial dissolution of the marriage without the man
having to pay compensation to his wife. Since women already have the
right to a fasakh divorce, he said, it is only fair that men be
given access to this mechanism as well.

The minister conveniently ignored the fact that men can use other
instruments for divorce, even telephone text messages, which women are
deprived of. Nor did he recognize that additional male rights under
the new law would only widen the chasm of inequality between the
sexes.

In press interviews, the well intentioned minister appeared bemused by
the outrage he faced in the Senate, insisting that the law is perfect
and beyond comparison. He also claimed that considerable discussion
had taken place before the bill was presented to the cabinet and
parliament. However, when probed further, it was found those he
consulted were the same people who drafted the lawofficers of the
Islamic Development Department. Discussions omitted other
stakeholders, such as experts outside government, interest groups, and
women who have experienced the Syariah (Sharia) Court system. Only one
woman sits on the Syariah Technical Committee charged with drafting
Islamic laws, but her post was confirmed late last year, well after
the amendments were tabled in parliament.

Sisters in Islam, a faith-based womens rights organization, protested
the amendments the moment it discovered them. On the strength of their
20-year study of the Quran, they held adamantly that women and men
were equal before God. Accordingly, they protested, the amendments
were undeniably unjust and contrary to the spirit and substance of
Islam.

A sore point with Sisters is the manner in which Islamic laws are
handled by the attorney-generals chambers, which determines if bills
are constitutionally sound and conform with the general spirit of
Malaysian law. Like all Islamic bills, the draft Family law is said to
have skipped rigorous review because officers trained in civil law did
not have the religious expertise to comment. Consequently, religious
laws, which have the deepest implications for peoples life, escape
scrutiny.

Looking back, it is now clear that the cabinet was inadequately
briefed on the billthe commotion in the Senate caught everyone,
including ministers, by surprise. When the bill reached parliament,
mps were given only two days to consider its passagewhich explains
why there was hardly any debate on the matter. Another reason why mps
and senators are often unaware of the full implication of certain laws
is because amendments reach them in truncated form. This explains
their horror when womens groups dissected the bill to explain its
potentially damaging impact.

Womens groups say the 2005 Islamic family law is not the only law
with discriminatory provisions. In 1996, amendments to the Insurance
Act ensured that insurance money belonging to Muslims would be divided
according to faraid, whereby wives and daughters get half of what men
get. In 2000, the National Fatwa Council (a body that issues religious
edicts) declared that money distributed by the Employees Provident
Fund would also come under faraid. On the face of it, Malaysian
Muslims appear to have accepted these decisions, but many parents have
quietly arranged for their sons and daughters to inherit an equal
share of properties.

More worrying is public reluctance to talk about and debate matters of
faith. There appears to be an assumption that, when it comes to Islam,
it is acceptable not to think, since questioning religion takes a
person into the realm of the unbeliever or the infidel. Alongside this
is the stubborn misconception that one needs a beard and
qualifications from Al-Azhar University in Cairo to speak about Islam.

A more entrenched problem is the unwillingness of most Muslims to
distinguish between man-made laws and the divine text. They refuse
obstinately to recognize that Islamic law is the product of human
engagement with the texts and is therefore not infallible. Yet fear of
blasphemy is so palpable in Malaysian society that public policy
involving Islam tends to be accepted without question.

Sisters, the main Malaysian group fighting for womens rights under
Islam, knew of the contentious amendments five years ago. They joined
forces with other NGOs to form JAGJoint-Action Group for Gender
Equalitywhich began lobbying political leaders and government
officers from as early as 2002.

Their objective was not just to dismantle the objectionable amendments
but to formulate a new model family law capable of dealing with
changing realities. But at almost every level, JAG encountered
indifference. At best, they were ignored. At worst, they were labeled
apostates who deviated from the path of God. Despite this, the group
has stayed the course, with Sisters in particular becoming a major
source of annoyance to the conservative Muslim community.

JAG has found the advances made by non-Muslims useful. In the 1970s,
when the Marriage and Divorce Law governing non-Muslims was being
reformed, a parliamentary select committee traveled around the country
to get feedback from citizens. The end result: a just law which
recognizes equality between men and women and outlaws polygamy.

With this example in hand, jag has questioned why Muslim women are
deprived of the same consultative process. It has protested the fact
that laws governing the lives of Muslim men and women are
draftedwithout public inputby a small, like-minded group of people.

JAG approached non-Muslim senators first because they seemed less
biased toward JAGs work. Once these senators understood the full
impact of the law on the increasingly fragile family institution,
support was forthcoming.

The senators came extremely close to rejecting the law. As it turned
out, party discipline took precedence, forcing the senators to vote
for the bill. However, JAG declared on Dec. 22 a moral victory and
stepped up pressure on the media to highlight the legislations flaws.
For instance, it organized a press conference to allow reporters to
meet a woman facing the bitter consequences of the law in the southern
state of Johor. Her husband had prevented her from accessing her own
bank accounts and the Syariah Court, it appeared, was leaning heavily
on his side. Finally, under mounting pressure, Prime Minister Abdullah
Badawi declared on Jan. 11 that the family law would not be gazetted
until the attorney-general had reviewed it, in close consultation with
womens groups.

Parliament will reconsider the law in March, and many hope the
restrictive and discriminatory amendments will be removed. The NGOs
have had intense and productive discussions with the attorney-general.
However, a parallel group wants to keep the law as is, and has the
support of the Minister of Women, Family and Community Development.
She has insisted that the problem stems from interpretation, and that
the law was never biased against women. The battle lines are drawn,
with the welfare of Malaysias women and its moderate Muslim image at
stake.

Ms. Ismail, a former editor with the New Straits Times and senior
fellow at the Institute of Strategic and International Studies, now
heads a media consultancy in Malaysia.