Intersections: Gender and Sexuality in Asia and the Pacific
Issue 36, September 2014


The Politics of Shari'ah Reform
and Its Implications for Muslim Women in Malaysia

Shahirah Bte Mahmood


    Introduction
     
  1. An assessment of Muslim women’s legal and socio-economic status in Malaysia unearths various incongruities. Compared to other Muslim countries in the Middle East, North African and South Asia, women in Malaysia participate significantly in the paid labour force and contribute to the country’s economy especially within the manufacturing and services industry.[1] Apart from the fact that women have traditionally worked outside the home, they also enjoy equal access to education and have high literacy rates. In fact, in 1998, more than half of tertiary students in public universities in Malaysia were women.[2] Moreover, women in Malaysia were granted suffrage in 1947 and have attained some form of political representation through the women’s wing of the dominant ruling party Barisan Nasional (BN) and the Ministry of Women, Family and Community Development. After BN’s lacklustre performance in the 2008 General Elections, Prime Minister Abdullah Badawi appointed one of the top women political members within Wanita UMNO (the United Malay National Organisation’s Women’s Wing) as his special advisor on issues related to Islamic family law.[3]
     
  2. Nevertheless, women’s participation in economic development and access to political representation belie the fact that there has been a growing trend towards conservatism for Muslim women in Malaysia.[4] The recent amendments of Islamic Family Law (Federal Territories) Act 1984, the initial exclusion of Muslim women from the Domestic Violence Act 1994, the passing of the Shariah Criminal Offenses Act 1993 and Shariah Criminal Offenses Act 2002 in the states of Kelantan and Terengganu respectively are some of the examples of the increasing trend towards greater gender discrimination and inequality in Islamic laws in Malaysia.
     
  3. In this paper I attempt to explain the conditions that facilitate either progressiveness or conservatism in Shari'ah law reforms. Laws that are more progressive tend towards greater gender equality and accord women with more rights. Laws that are more conservative undermine gender equality and diminish women’s rights. This study systematically reveals that increasing Islamic resurgence does not necessarily lead to the implementation and enforcement of stricter and more discriminatory Islamic laws. The two most important variables determining the enforcement of these laws are in fact the extent of Islamic threat that the ruling party confronts and the degree of governmental and grassroots support received by organised women’s groups. In states where the Islamist opposition threat is minimal, coupled with strong and consolidated feminist advocacy, laws that are initially passed may not necessarily be implemented and might even be amended to include more egalitarian statutes. On the other hand, in states where the Islamist opposition has a strong hold on political power, the federal government may engage in more conservative rhetoric and concede to passing Islamic laws that are more discriminatory on the basis of gender.
     
  4. In arguing my case, first, I will examine dominant explanations for the burgeoning of Islamic consciousness since 1970s and provide some background on Islamic law in Malaysia. Then I will discuss the conservatism underlying Islamic law reforms and examine the conditions that result in greater conservatism or progressiveness in Shari'ah law reforms.


    Islamic Resurgence in Malaysia
     
  5. The cataclysmic events of 11 September 2001 have revived global interest in the role of Islam in politics. The growth of Islamic fundamentalism—embodied by transnational and regional Islamic terrorist organisations such as Al-Qaeda, the Taliban and Jemaah Islamiyah speaks to the increasing need to understand Islam’s role (or the lack thereof) as the ideology underpinning the nationalist struggles in individual states, the construction of Islamic institutions and Islamist party politics. In this context, Malaysia is often seen as the epitome of a moderate, industrialised and modern Islamic state. Approximately two-thirds of Malaysians are Muslim.[5] Islam is the state’s official religion and apart from Malays (who are almost always Muslim), the multi-ethnic citizens of Malaysia are free to practice any other religion. Since Malaysia attained independence from the British in 1957, it has witnessed impressive rates of economic growth and low rates of racial and religious conflict. Apart from the 13 May 1969 race riots that were closely linked to religious factors and compounded by economic inequalities, Malaysia has not experienced large outbreaks of violence.[6] However, beneath the veneer of mass consumerism, influx of international capital and tourist appeal for ‘westerners,’ there has been a growing trend towards Islamic conservatism in the country. This is reflected not only in dress codes and larger attendances amongst mosque congregations. It is also apparent in public statements made by political figureheads declaring Malaysia to be an Islamic state, the increasing incidence of moral policing, the severe curtailment of rights and liberties in the name of Islam, and the expanding exclusive jurisdiction of Shari'ah courts.
     
  6. Many scholars have written about Islamisation in Malaysia since the 1970s and attempted to explain it based on both exogenous and endogenous factors. Exogenous factors include the Arab oil embargo in 1973, the Islamisation program in Pakistan between 1977 and 1988, and Iran’s Islamic revolution of 1978–1979.[7] At the same time, Joseph Chinyong Liow and Amrita Malhi have cited endogenous factors such as the ‘Islamisation race’ between political parties the United Malay National Organisation (UMNO) and Parti Islam Se-Malaysia (PAS) as a reason behind the increasing permeation of Islamic values in Malaysia’s social and political institutions.[8] Amanda J. Whiting’s analysis moves away from Malaysian party politics and examines the strong identification between Islamic identity in Malaysia and its association with Islamic law.[9] She argues that there is a strong tendency to reinforce ordinary politics with judicial decisions and legal formalities. According to this logic, the increasing prevalence of Islam within the public and private sphere necessitates the spread and enforcement of Islamic law, the issuing of fatwa, as well as expanding the jurisdictional reach of Shari'ah courts.[10]
     
  7. Apart from the political and legal arguments, Vidhu Verma accounts for the mounting Islamic resurgence as a response by disenfranchised Malays to their economic marginalisation and growing dissatisfaction towards economic restructuring, as enshrined in the New Economic Policy (NEP).[11] The NEP is an affirmative action policy, which targeted a 30 per cent share of the economy for ethnic Malays (also known as Bumiputra or sons of soil) and accorded them quotas to the admission to public universities.[12] While the stated goal of the NEP was to eradicate poverty and reduce the intra-ethnic income gap, critics against the policies have accused it of empowering only a small group of Malay ruling elites and Chinese businesses while failing to produce equitable social redistribution among the majority of Malays.[13]
     
  8. The works cited above offer thorough and varied explanations behind the increasing Islamisation of Malaysian society and politics. Some of these works have also highlighted the negative impact of the growing Islamic resurgence on women.[14] However, these works do not account for the variation in Shari'ah laws across states. More importantly these studies have not systematically investigated the conditions that facilitate either conservatism or progressiveness in Shari'ah Law reforms and enactment. In my work, I have found that the two most important variables determining the enforcement of these laws are the extent of Islamic threat that the ruling party confronts and the degree of governmental and grassroots support received by organised women’s groups. While the Islamic penal code passed in Kelantan and Terengganu illustrate that increasing Islamic resurgence may reinforce discriminatory gender laws, the partial repealing of Islamic Family Laws (Federal Territories) in 2005, indicates otherwise. The latter case shows that Islamic resurgence may not necessarily lead to the implementation and enforcement of stricter statutes that discriminate on the basis of gender.


    Islamic Law in Malaysia – the institutions
     
  9. Malaysia is a federal state with a strong central government and thirteen state governments. Power is divided between the federal and state legislature as enumerated in the Federal and State list stipulated in the constitution.[15] Article 3(1) of the Malaysian constitution declares that while Islam is the official state religion, freedom of religion is guaranteed.
     
  10. While civil law falls under federal legislature, personal and family laws of Malays who are defined as Muslims, fall under the jurisdiction of each state legislature. Each state government, under the guidance and advice of the king (sultan) or chief executive of the state (Menteri Besar) and their respective religious state council (Majlis Agama Islam), sees to the administration of Islamic law.[16] In short, Muslims are subjected to state-based Shari'ah law for family and religious affairs, but all citizens, including Muslims, are governed by common law that falls under federal jurisdiction.[17]


      Strengthening the role of Islamic Courts

     
  11. A brief overview of the historical development of Shari'ah courts is helpful for understanding the symbiotic relationship between the expansion of Shari'ah authority and the centrality of Islamic values and principles in governing the lives of the majority of Muslims in Malaysia. During the period of British colonial rule, the 1874 Pangkor Treaty gave the British complete authority in administering its affairs in Malaya, while leaving matters of Malay customs and Islam to the sultanates. However, although the British officially gave the sultanates full freedom to manage Malay customs (adat) and Islamic laws, in reality, as with other non-religious matters, any rulings by the Shari'ah courts were ultimately subjected to the superiority of the civil courts, which were based on British statutory law.[18]
     
  12. In anticipation of Malaysia’s attainment of independence in 1957, a five-member Constitutional Commission under the chairmanship of Lord Reid was established in London to formulate a new constitution for the independent state. The Reid Commission, along with a Working Committee dominated by local secular-nationalists, decided to give Islam a largely ceremonial role by making it the ‘official religion of the Federation’ (Article 3(1)) while maintaining Malaysia’s position as a secular state.[19] Each sultanate within the respective states assumed the responsibility of administering Islamic affairs and maintaining the Shari'ah courts (Article 11(4)), while the Federal Parliament held the ultimate power to overrule Islamic laws decided by these states (Article 4(1)).[20] The authority and jurisdiction of the Shari'ah courts were thus significantly limited by the new Constitution. In essence, Shari'ah courts became part of the apparatus of each state within the nation, and their jurisdiction was delineated by the state legislature pursuant to the stipulation of Article 74 and List II of the Ninth Schedule to the Federal Constitution.[21]
     
  13. It was not until the 1980s and 1990s, at the height of the Islamisation wave, that the authority of the Shari'ah courts was significantly expanded as the government implemented statutory initiatives that provided wider jurisdictional leverage to the Shari'ah courts. In 1988, Article 121(1A) was amended to ensure that civil courts could not reverse decisions made within the jurisdiction of Shari'ah courts. Although the latter’s jurisdiction was still limited to matters pertaining to family, divorce, inheritance and child custody laws, this amendment was significant in upholding the supreme authority of Shari'ah law and the legitimacy of state religious departments. It is within the context of the amended Article 121(1A) that I will examine specific legislation below.


      The Jurisprudential basis of Islamic Law in Malaysia

     
  14. The provisions of Islamic law (fiqh) are based on the Qur’an and collected sayings and traditions of the prophet (sunnah). However, these two sources do not specify detailed rules. On the basis of these texts and authoritative sources, jurists (mujtahids) adopt different criteria and rules to discover the principles of Shari'ah Law.[22] It is commonplace to think of Shari'ah law and Islamic Law as synonymous. In fact, Shari'ah literally means a connection to the divine, a way of ordering one’s ethical precepts and moral values according to God’s will. It is the process of discovering Islamic legal reasoning and the principles of Islamic jurisprudence that is called fiqh, Islamic law. It is important to note the differences between the two, which reflect the plurality of Islamic jurisprudence and its implications. Nevertheless, a caveat is in order with respect to my usage of these terms in this paper. Given the synonymous usage of Islamic law and Shari'ah law in legislative statutes and in the media, I use these terms interchangeably here unless otherwise stated.
     
  15. The dominant school of Islamic jurisprudential thought (mazhab) of the Malays in Malaysia since the spread of Islam in Southeast Asia is the Shafi’ie school, which is associated with an austere and strict interpretation of Islam.[23] Nevertheless, due to the spread of reformist ideas from the Middle East to India and Southeast Asia, concerted efforts have been made to ensure that Islamic family law reforms address the problems of gender inequality and discrimination. The codification of Islamic family law in Malaysia took place in the 1970s under the direction of Professor Ahmad Ibrahim. It was also initiated by the National Council of Women’s Organisations. As a result, Islamic family law in the 1970s granted women extensive rights and protection from injustice.[24] Moreover, Islamic family law in Malaysia was considered one of the most progressive compared to other Muslim-majority countries.[25]


    Conservatism underlying Shari'ah reforms
     
  16. The Islamic Family Law (Federal Territories) Act 1984 was prominent because Malaysia was one of the earliest Muslim majority countries to implement Islamic family law codes that were considered progressive.[26] However, in the 1990s reforms were passed that had a negative impact on women’s rights. In this section I discuss the 1990s amendments in Islamic family law that had a particular impact on polygamy and women’s access to divorce.


      Islamic Family Law (Federal Territories) Act 1984: Polygamy

     
  17. In 1994, the restrictions on polygamous marriage were challenged, on the basis that they had veered from the tradition of Islam. Eventually, the fifth legal requirement—namely, that the proposed marriage should not directly or indirectly lower the standard of living enjoyed by the man’s existing wife and other dependants—was removed. Moreover religious departments in other states were reported to have ignored the restrictions on and conditions of polygamy stipulated by these statutes. For example, records of polygamous marriages in Perlis showed that every application for polygamy since 1993 had been allowed. The 1994 amendments also introduced provisions that reduced restrictions on polygamous marriages by allowing husbands to register their second or subsequent marriage without a court order as long as it was in conformity with Islamic law and provided the husband paid a token fine after the fact.[27] This amendment led to a proliferation of illegal polygamous marriages entered in southern Thailand or through illegal marriage syndicates operating in Malaysia.[28] Clearly, reducing the restrictions on polygamous marriages diminishes women’s rights insofar as husbands are at liberty to enter another marriage without their wives’ consent.
     
  18. In 2005, a few amendments were introduced with the objective of protecting women who were already in polygamous marriages and standardising the statutes in all states in Malaysia. These amendments had the opposite effect by actually reducing women’s legal rights within the areas of marriage, divorce and inheritance. Eventually the bill and the new reforms were passed but not published. Women’s organisations, which included Sisters in Islam (SIS), steered the Joint Action Group on Gender Equality (JAG) that comprised the Women’s Aid Organisation, Women’s Crisis Centre in Penang, Women’s Development Collective, All Women’s Action Society and the Malayan Trade Union Congress (MTUC) Women’s Section. Together with women parliamentarians, these women’s groups were influential in their demands to remove the discriminatory clauses and statutes. Subsequently, the provisions that were considered discriminatory against women were revoked, and the bill was tabled again and passed in 2006.[29] The details of the above amendments and the reasons behind the successful repudiation of discriminatory statutes will be discussed in the following section.[30]


      Access to Divorce for Husband and Wife

     
  19. The four main schools of Islamic law (Shafi’ie, Hanafi, Malaki and Hanbali) accord the right to the husband to divorce through repudiation (talaq). Although divorce is seen as ‘detestable,’ it is permitted in order to avoid greater conflict in the family.[31] In fact, it has become normal practice for husbands to divorce their wives. As such, the divorce rates in certain provinces in Malaysia during the 1950s were the highest in the world, with at least one third of all Malay marriages ending in divorce.[32] In the 1960s steps were taken to regulate divorce, whereby all cases would be referred to arbitration before proceeding with the divorce. In the 1980s further stipulations were outlined to reduce divorce rates and to ensure that husbands were not abusing their legal rights. To prevent any unjust repudiation of marriage, all pronouncements of talaq were considered valid only when they were made before the Shari'ah court and received the permission of the court. As a result, these procedural restrictions reduced the divorce rates in peninsular Malaysia.[33]
     
  20. In 1994, the Islamic family law (Federal Territories) Act was amended, which saw a turn towards diminishing women’s rights. Husbands who pronounced talaq outside the court would be liable to a fine and punishment, but ultimately the court would still consider their pronouncement. The court would then retroactively determine whether the pronouncement of talaq was valid according to Islamic law. Women’s organisations, in particular SIS, criticised this reform as unjust, reversing the intended goals of the original Islamic Family Law Act published in 1984. Nevertheless, the new amendments allowed women the right to file for divorce if the husband did not pay her maintenance for a period of four months or more, or if he assaulted her physically. Similarly, the 1994 amendments allowed women to apply for divorce through fasakh, or divorce through judicial proceedings that are based on a few conditions.[34] Considered together, these procedures provided greater access to divorce for women. However, there are mixed accounts as to whether the actual divorce proceedings mirror the relative ease that women have, legally, in terms of access to divorce.[35]
     
  21. In 2005, the newer amendments allowed for the right of fasakh, which is usually reserved for wives, to be extended towards the husbands. SIS criticised this statute as it provided more channels for men to divorce their wives, further disadvantaging women. In 2006, the bill was again amended to include their suggestions and the extension of fasakh was reserved only for wives.
     
  22. The above discussion reflects a few major points. First, the 1994 Islamic family law reforms diminished gender equality especially with respect to marriage and divorce laws. Second, the 2005 reforms that were meant to standardise Islamic law statutes across all states in Malaysia in effect further reinforced women’s subordinate status. However the 2006 amendments led to a partial win for women’s groups as they legislated stricter regulations over marriage and divorce laws.


    Accounting for variation in Shari'ah Law

      UMNO’s Political Incentive Structure

     
  23. Theories of state capacity, in particular, the ‘state-in-society’ approach, emphasise the role of the state as a limited actor.[36] The focus here is on the processes and mechanisms that limit the state’s capacity—that is, its ability to accomplish its objectives—as the state engages with other social forces. According to Joel Migdal, ‘a state-in-society indicates a process-oriented approach in which states and society are in a mutually transformative relationship.’[37] Scholars who study how governments deal with an Islamist challenge extend this insight by examining the relationship between state governments and Islamist opposition groups and non-governmental organisations (NGOs). According to Mohammed Ayoob, the nature of the relationship between the dominant political power and the Islamist challenger may be categorised in terms of co-optation, competition and suppression. According to Ayoob, co-optation provides states with religious credibility and popularity, suppression rids the state of the Islamist threat but may prove to be unsustainable because of the threat of a counter-revolution, and competition may lead to an extreme regulation of religion and acquiescence to conservative populist demands.[38]
     
  24. Islam is severely politicised in Malaysia, as evident from the increasing penetration of Islamic values and practices from the time of the state’s initial nation-building efforts to its present consolidation of political and bureaucratic power. For Muslims whose faith pervades every aspect of their lives and admits no clear delineation between the sacred and profane, what is commonly perceived, as the politicisation of religion is in fact a representation of their desire to realign the political unit with the religious.[39] While the resurgence in Islamic piety has in part contributed to the increasing permeation of Islam into politics, it is the ‘Islamisation race’—or the oscillation between co-optation, competition and suppression between political incumbent UMNO and Islamist opposition challenger PAS—that has resulted in UMNO bolstering the position of state-sanctioned religious leaders (ulama) and bureaucratising Islamic values and practices in the education, economic and social spheres. Further, as astutely asserted by Liow, ‘in order to fully appreciate the kaleidoscope of Islamist politics, one must consider not merely the UMNO-PAS contest but also other actors, institutions and movements through which broader trends of Islamism have come to be expressed.’[40] In other words, to understand how social and religious authority is contested and negotiated, and by extension how political power is manipulated and institutionalised, we need to examine the relational mechanisms underlying UMNO’s engagement with PAS, NGOs and other actors. With respect to the reforms in Islamic law, this paper proposes that UMNO’s incentive structure comprises of the four variables as reflected in Table 1.



    Table 1. UMNO Incentive Structure

     
    In the next section, I examine how these variables impact on the passing and implementation of Islamic law and Islamic law reforms, beginning with a discussion of the Shari'ah Criminal Code in Kelantan and Terengganu.


    Shariah Criminal Code Enactment (Kelantan, 1993) and Shariah Criminal Code Enactment (Terengganu, 2002)
     
  25. Since 1994 most states in Malaysia have adopted the Shariah Criminal Offenses Enactment that governs public morality.[41] Under this act, any fatwa issued by the state mufti is ‘binding on every Muslim resident…as a dictate of this religion and it shall be his religion and it shall be his religious duty to abide by and uphold the fatwa.’[42] The fatwa has the force of law without being debated in state parliament. Given that fatwa are judicial opinions that are not meant to be legally binding, women’s organisations have labelled this act as advocating ‘theocratic dictatorship.’[43] Among other things, the Shari'ah Criminal Code serves to regulate women’s morality by stipulating dress codes, permissible types of interaction between men and women, and the consumption of alcohol. The punishments enforced have raised public acrimony, especially from secular women’s organisations and non-Muslims. For example, three Muslim beauty pageant contestants were arrested in July 1997 for violating Islamic dress codes, and publicly shamed and humiliated. Another incident involved the arrest of 100 Muslim patrons of a nightclub, and the women in particular were allegedly treated like ‘juvenile delinquents’ and subjected to verbal abuse and humiliation.[44]
     
  26. In 1993, the PAS government in the Kelantan state legislature tabled the Shari'ah Criminal Code Bill, otherwise known as the Hudud Bill. It was the subject of huge controversy both at the state and federal level. While PAS parliamentarians were in general agreement with the content of the bill, UMNO assemblymen were hesitant at first but eventually acceded to passing the bill given its immense popularity amongst members of the state legislature, religious leaders and the general public. Given that Kelantan has been under the control of PAS since 1990, UMNO assemblymen did not want to be seen as ‘un-Islamic.’
     
  27. The subject of introducing the Shari'ah Criminal Code resurfaced again in 2002 in Terengganu when PAS won the state in the 1999 general elections. The Hudud Law agenda had been pushed to the forefront during the elections when UMNO claimed that PAS was insincere about introducing Hudud Law in Kelantan even though PAS had been in power for more than ten years.[45] After the election, the Hudud Bill was passed in the Terengganu legislature, which comprised of twenty-eight PAS assemblymen and four UMNO assemblymen. All the PAS assemblymen voted for it and instead of opposing the bill, the UMNO assemblymen abstained from voting.
     
  28. Although these Hudud bills were passed in Kelantan and Terengganu, it is important to note that criminal law is not under the jurisdiction of state Shari'ah courts and remains under the purview of federal courts. The implementation of Shari'ah law at the state level would require the amendment of the federal constitution. Given that as of 2002, UMNO still held a two-third parliamentary majority at the federal level, it would have been constitutionally impossible for the hudud code to be implemented and enforced at that time. Moreover, implementing the law would require police enforcement by the state, but as mentioned above, state governments do not have jurisdiction over internal security affairs. Instead federal authorities are vested with powers over the thirteen states’ official policing affairs.
     
  29. Beyond the constitutional reasons that prevent the law from being officially implemented, UMNO’s credibility as an ‘Islamically’ inclined government was also being tested, given the high publicity of the Hudud bills. UMNO had also criticised the bill, asserting that PAS’s version of the Shari'ah criminal code was not ‘Islamic’ enough. The minister of Islamic Affairs in the Prime Minister’s department publicly stated that ‘several sections contradicted Islam and PAS had listed only six hudud offenses while the religion says that there were seven.’[46] These responses reflected that UMNO had chosen to oppose the bill not because the punishment accorded in the bill appeared too extreme, dogmatic or unjust, but because the punishments accorded were not compatible with the ‘right’ type of Islam.
     
  30. By presenting a public statement from the religious department, UMNO was asserting the party’s control and authority over an ‘authentic’ and ‘true’ version of Islam. It would have been politically costly to disparage the hegemonic discourse of Islamic resurgence by casting aspersions on PAS’s attempts to establish Islamic law in a society where piety is increasingly important. Given that UMNO realised that the bill would not have been implemented for the constitutional reasons discussed above, it was more important for the four UMNO assemblymen to be seen as holding religious authority over Islam and acting in opposition to the PAS assemblymen. In 2004, after Barisan Nasional (BN) won Terengganu, the UMNO-dominated legislature no longer pushed for the implementation of the Hudud Bill, claiming that other matters such as economic reconstruction and expanding job opportunities deserved higher priority.[47]
     
  31. The competitive relationship between PAS and UMNO over Islamic doctrine shaped the terrain for other NGOs and citizens to react to this episode. The fiery and some times vindictive political exchanges between the two parties has created a political climate that polarises debate within civil society. For example, Islamic NGOs (INGOs) such as Persatuan Ulama Malaysia (Malaysia Religious Scholars Association), which is closely identified with PAS, strongly supported the latter’s decision when they announced the bill. However, non-Muslims were wary of the Hudud Bill because they were afraid that the law might eventually be applicable to them, despite assurances otherwise from PAS leaders. The worries of non-Muslims were heightened when former Prime Minister Mahathir publicly warned that fundamentalists (read PAS) would alter the tolerant teachings of Islam and that their attempt to introduce hudud law was a way to include non-Muslims as well.[48] In Kelantan and Terengganu, PAS had also shut down bars, liquor outlets and banned gambling businesses belonging to the small but influential Chinese community, which was unsupportive of the bill.
     
  32. Suffice to say autonomous women’s groups such as SIS were vocal in their criticism against the bill. SIS called for major amendments to be made to the provisions. First, they cited how under the section of illicit sex (zina), the burden of proof was on the female accuser to provide four male witnesses of good character to substantiate her accusation. Second, under the section of accusation of zina without witnesses (qazaf), a woman who claims that she is raped without there being any witnesses would instead be found guilty and given ninety lashes. Third, if a woman became pregnant as a result of being raped, her pregnancy would be deemed as evidence of zina. Her punishment for zina if she was an unmarried woman would be 100 lashes and a year’s jail; and if she were a married offender, the punishment would be death by stoning.[49]
     
  33. This discussion illustrates that when an Islamist opposition monopolises political power at the state level, this drives the central government to engage in more conservative rhetoric and concede to the passing of ‘Islamic’ laws that are more discriminatory on the basis of gender. It is evident that the strong extent of Islamist challenge faced by UMNO and the clear majority of a PAS-led assembly in Kelantan and Terengganu had shifted this debate into one where the actual passage of the law was less crucial than the appearance of holding and enforcing public morality in the name of ‘Islam.’


      The Amendments to Islamic Family Law Act of 1994 and 2005

     
  34. In this section I return to the earlier discussion on Islamic Family Law. I examine how the variables in Table 1, in particular the strong and consolidated advocacy by women’s groups, have impacted the 2005 reforms in Islamic Family Law. Demands for reform to the Islamic Family Law (Federal Territories) Act 1984 had been underway since amendments made in 1994 were identified as discriminatory toward women. In 2005, the push to amend the law was finally made in an effort to standardise Islamic Family Law across the thirteen states and federal territories.[50] While the changes to the law in 2005 were more discriminatory against women, it is worth noting that the bill was discussed for only two days in the lower house before it was approved. Furthermore, the discussion in parliament revolved only around men’s right to polygamy instead of other substantive issues.[51] Although nineteen women senators had objected to the bill and publicly stated that they would vote against it, the Minister in the Prime Minister’s department invoked the party whip. He spoke to the nineteen women senators in small groups and ordered all of them to vote for the bill. The Minister claimed that the women senators ‘are free to debate and speak their mind, but when it comes to a vote they have to follow.’[52]
     
  35. As mentioned in the earlier sections, even though the 2005 bill was passed, it was not published nor was it enforced. In 2006, the bill was tabled again to include the suggestions of the Joint Action Group on Gender Equality (JAG); subsequently, this was passed. In order to understand the finer nuances behind the significance of the 2006 amended bill, it is important to differentiate between the perspectives of the significant NGOs involved. Before I elaborate on that, I will provide some background on these NGOs.


      Sisters in Islam

     
  36. Sisters in Islam (SIS) is a non-partisan women’s rights group. It has attracted considerable domestic and international attention by articulating and highlighting current debates and issues affecting the rights and roles of Muslim women. SIS believes in creating and expanding the space for public discussion of laws and policies made in the name of religion that discriminate against women and infringe on constitutional provisions.[53] The group asserts that given the use of Islam as a political ideology and a source of law to govern lives, Islam can no longer remain the sole preserve of the ulama.[54] SIS also believes in advocating women’s rights within an Islamic framework and fighting for change within the religion. The group has also addressed wider issues affecting Muslim society such as the nature and implication of Hudud (Islamic criminal code) laws and the concept of an Islamic state. Of noteworthy importance and central to their advocacy work is that SIS engages in the re-interpretation of the Qur’an. They argue that in the rich and complex heritage of Islamic jurisprudence, there exists a diversity of positions and interpretations on a whole range of issues in Islam. In the same vein, Shari'ah law as promulgated in Malaysia does not entirely consist of theological revelations; rather, certain aspects of Shari'ah law have actually been mediated through human interpretation and understanding.
     
  37. Although they formed part of the organised women’s groups that were successful in reversing the Islamic Family Law Bill 2005, the reforms that were included and subsequently passed accorded lesser rights to women compared to SIS’s demands for a complete reform of the bill.[55]


      Jemaah Islah Malaysia (Malaysia Islamic Reform Society)

     
  38. JIM is an Islamic NGO that was formed in the 1990s. JIM advocates for a ‘moderate’ and ‘progressive’ application of Islam in the country. Its membership base comprises middle-class Muslim professionals and tertiary-educated students. Like most NGOs in Malaysia, it provides social welfare services such as setting up modern Islamic schools, and running shelters for single, teenaged mothers and educational programmes for their children. In contrast to SIS, JIM’s position on women’s rights is comparatively less liberal, less individualistic and more in line with the gendered roles of women as primary caregivers of the family. In terms of politics, they threw their support behind PAS in 1999. In 2008, they aligned themselves with Keadilan Rakyat, the main opposition coalition against UMNO that was led by Anwar Ibrahim. Although JIM argues that Islam confers rights on women, they have been muted on the issue of polygamy. In response to the Islamic Law Bill of 2005, which made divorce and polygamy easier for men, they asserted that it was ‘important [that the government] implement existing laws with sensitivity towards women and for any ambiguities in the law to be cleared up.’[56] JIM was not part of the coalition of women’s organisations that demanded for changes to the 2005 bill.
     
  39. Far from the key reforms suggested by SIS, the amended bill in 2006 did not repeal polygamy, nor did it introduce the equal right to divorce and other demands as outlined by SIS. However, a few reforms were included in the 2006 bill: 1) Polygamous marriages were valid only with a court order; 2) The husband had to prove that his proposed marriage was both ‘necessary and just’[57] ; 3) The husband’s right of fasakh (divorce through judicial proceedings or annulment) was removed, as men had the absolute right to divorce through talaq (repudiation); 4) The husband would not be able to claim a share of his existing wife’s property upon committing polygamy.[58]
     
  40. Although the key reforms outlined by SIS were not included in the bill, the committee that was convened to look into the bill after it was passed in 2005 introduced partial restrictions to polygamy and the husband’s right to divorce. The committee acquiesced to certain demands from JAG, which had received support from women parliamentarians and certain segments of the public. Why were these reforms passed in the Federal Territories and not in the other states? Moreover, why were SIS and other women’s groups partially successful in 2006 and not in 1994, when Islamic Family Law (Federal Territories) Act was first amended?
     
  41. To answer the first question, it is important to note that the number of women parliamentarians in the federal assembly has been growing, unlike in the thirteen state assemblies. In 1995, women parliamentarians in the federal assembly comprised 16 per cent and 6.7 per cent of the upper house and lower house respectively. In 1999, these percentages rose correspondingly to 29.5 percent and 9.8 percent respectively. However, the changes at the state assembly level were minimal, from 4.8 per cent in 1995 to 5.3 per cent in 1999. These figures explain why it was easier to push for gender-egalitarian reforms in the national parliament as opposed to the state assemblies.
     
  42. In fact, a few days before the bill was passed women senators at the upper house had submitted a diplomatically worded letter requesting that the bill be withdrawn. The women senators had managed to achieve consensus across party lines (chiefly PAS and BN) denouncing the 2005 reforms. In a show of solidarity heretofore unseen between members of PAS and UMNO, three PAS senators had also signed the letter to the Prime Minister.[59] Given that the Federal Territories are governed directly by the federal government of Malaysia, it was clear that the Islamist threat faced by UMNO from PAS was minimal.[60] Clear lines of political authority diminished the role of religion as a basis of political legitimacy. Reduced political tussling over public morality enabled senators to forge alliances across party lines.
     
  43. To answer the second question, as to why SIS was more successful in 2006 than they were in 1994, we need to look at how SIS has evolved and examine the changes in their strategies. SIS was formed in 1988 and their first activity was a workshop drawing together other women’s NGOs, the federal government’s Women’s Affairs Division, and the Islamic centre in the Prime Minister’s department to discuss the impact faced by women due to the implementation of Islamic Family Law.[61] SIS comprised educated, urban women who were by profession lawyers, journalists, university lecturers and women’s right activists. SIS’s advocacy activities include producing a wide range of publicly disseminated information, such as a weekly legal column in one of Malaysia’s widely circulated newspapers, Utusan Malaysia, and published commentaries on issues it deems critical to the welfare of Muslim women. A few notable commentaries that SIS have published are: Islamic Family Law and Justice for Muslim Women, Islam and Polygamy, and Islam and Family Planning.[62] Apart from lobbying against bills that are unjust towards women, SIS also organises public lectures on contemporary Islamic issues and conducts monthly training programmes on women’s rights. Over time, SIS have expanded their repertoire of advocacy activities and formed networks of support across a broad constituency of women’s and human rights groups at the grassroots level.
     
  44. Apart from the wide array of advocacy activities, SIS’s ability to remain autonomous has been key to the group’s increasing prominence. In Aili Mari Tripp’s study of Ugandan women’s movements, she identifies a number of reasons why autonomy is crucial for women’s organisations:

    1. Women’s organisations are able to determine their own goals, even when these are in conflict with dominant political organisations.
    2. Women’s organisations can select their own leadership free from interference of political parties or governments that might wish to choose women leaders who are loyal.
    3. Organisations can engage in direct collective action to improve their situation.
    4. Women can challenge discriminatory distribution of resources and power.[63]

  45. As an autonomous women’s organisation, SIS does not have to compromise on its main objective of promoting feminist consciousness within the Islamic framework. Their approach for fighting for women’s rights through an egalitarian and progressive reading of the Qur’an and Hadith is paradigmatic of a growing number of women’s groups in Muslim-majority countries. This strategy provides them with the space to develop the group’s identity and objectives free from external influences. Moreover, by using the language of women’s rights as citizenship rights, SIS can look to secular women’s groups such as the Women’s Crisis Centre in Penang and the Women’s Aid Organisation for active support. However, as SIS’s members were not schooled at traditional institutions of Islamic learning in Malaysia or Egypt, their authority over the reinterpretation of Islamic doctrine is zealously disputed. By pushing a bold and alternative Islamic agenda, SIS runs the risk of being sidelined. Religious authorities, political leaders and government officials have exercised immense caution when interacting with SIS, as to be seen publicly supporting SIS’s agenda is politically costly. Other Islamic NGOs groups such as PEMBELA (Defenders of Islam) has expressed scathing criticism of SIS’s support for upholding civil and individual rights in a series of controversial apostasy cases.[64]
     
  46. SIS was able to garner a broad constituency of support with other women’s NGOs, which became crucial in preventing the 2005 bill from being published and later amended. Moreover, they had the support of nineteen women parliamentarians who had publicly expressed their grievances with the bill in the media. Before the bill was passed in the upper house, SIS had met with the women senators as well as the Minister in the Prime Minister’s department.[65] They had also published commentaries in newspapers on the detrimental effects the bill had on women. The ‘outsider’ and ‘insider’ strategies available to SIS were a result of careful calibration of alliances with women parliamentarians, while remaining autonomous and independent from the government.
     
  47. With reference again to Table 1, this paper has uncovered a few findings. In the case of the Shari'ah Criminal Offenses Enactment (Kelantan, 1993 and Terengganu, 2002), when the ruling party faced a very strong threat from an Islamist opposition party, the bill introduced in parliament was passed because the federal government’s support for the bill was meant to emphasise UMNO’s discursive authority on Islam and reinforce their credibility as a party committed to implementing Islamic teachings in the country. However the 1994 Islamic Family Law amendments illustrate that when the Islamist opposition threat faced by the government was weak, the strong support by Islamic NGOs and the exclusive application of the bill towards the Muslim community led to the passing and implementation of the bill. In 2006, strategic advocacy by women’s groups who had received support from women parliamentarians (in incumbent and Islamist opposition parties) and the public resulted in the removal of gender discriminatory statutes in the bill. This episode reflects that a minimal threat by Islamist opposition accompanied by strong and consolidated feminist advocacy will lead to reforms that promote women’s rights.
     
  48. In this study I have revealed that increasing Islamic resurgence in society does not necessarily lead to the implementation and enforcement of strict Islamic laws that discriminate on the basis of gender. The two most important variables in these cases have been the extent of Islamic threat that the ruling party confronts and the degree of governmental and grassroots support received by organised women’s groups. In states where the Islamist opposition threat is comparatively minimal coupled with a strong and consolidated level of feminist advocacy, laws that are passed may not be implemented and might even be amended. On the other hand, in states where the Islamist opposition monopolises political power, the federal government may engage in more conservative rhetoric and concede to passing more gender-discriminatory Islamic laws.
     
  49. Democratic impulses in Muslim countries have led to the burgeoning of Islamic extremist groups. At the same time, a participatory political culture has enabled women’s groups to articulate and mobilise around their demands for women’s rights that are compatible with Islam. I have outlined a structure that enables women’s groups to achieve their political demands in a Muslim-majority country such as Malaysia. Further research should be done to examine the implications of Shari'ah reforms on the lived realities of Muslim women. While many women’s groups are against Shari'ah reforms that undermine women’s rights, there are other women who identify and advocate for a more conservative turn in Islamic law. A clearer understanding of the physical, economic and social constraints faced by Muslim women would illuminate the reasons behind women’s resistance to or support for Islamic law that discriminate on the basis of gender.


    Notes

    [1] Valentine Moghadam, ‘Is gender inequality in Muslim societies a barrier to modernization and democratization?’ in Modernization Democracy and Islam, ed. Shireen T. Hunter and Huma Malik, London: Center for Strategic and International Studies, 2005, pp. 98–115.

    [2] Zainah Anwar, ‘What Islam, whose Islam? Sisters in Islam and the struggle for women’s rights,’ in The Politics of Multiculturalism Pluralism and Citizenship in Malaysia, Singapore and Indonesia, ed. Robert Hefner, Honolulu: University of Hawai’i Press, 2001, pp. 227–52.

    [3] UMNO is the largest political party in Malaysia and together with the Malaysian Chinese Association (MCA) and the Malayan Indian Congress (MIC), these parties form a coalition formalised as Barisan Nasional (BN).

    [4] It is important to note that even though women form a large proportion of employees in the services and manufacturing sectors, they are underrepresented in top managerial posts, as senior officials and legislators compared to other OECD countries. See 'Statistics and indicators on women and men,' Work, Table 5F Women legislators and managers, in United Nations Statistics Division, June 2013, online: http://unstats.un.org/unsd/demographic/products/indwm, accessed 7 January 2014.

    [5] 'Taburan Penduduk Dan Ciri-Ciri Asas Demografi, Population Distribution and Demographic Charastices,' Jabatan Perangkaan Malaysia, Department of Statistics Malaysia Official Portal, 2010, p. 9., online: http://www.statistics.gov.my/portal/download_Population/files/census2010/Taburan_Penduduk_dan_Ciri-ciri_Asas_Demografi.pdf, accessed 7 January 2014.

    [6] Joseph Chinyong Liow. Piety and Politics: Islamism in Contemporary Malaysia, New York: Oxford University Press, 2009, p. 10.

    [7] See Hassan, ‘Islamic non-governmental organizations,’ in Social Movements in Malaysia, ed. Meridith L. Weiss and Saliha Hassan, New York: Routledge, 2003, pp. 97–114; and Anwar, ‘What Islam, whose Islam?’ pp 227–252. According to Hassan in her research on Islamic non-governmental organisations in Malaysia, Iran’s Islamic revolution was the impetus behind Darul Arqam’s (an Islamic NGO) avowed commitment in establishing an Islamic state where true Islamic alternatives would replace the existing western-based political and economic systems. Meanwhile, Anwar, the executive director of Sisters in Islam, argues that an important impetus to Islamic revivalism derived from the thousands of Malaysian students who studied abroad at various foreign universities as part of the government’s policy on higher education for Malaysians. Malay Muslims who studied in Egypt were heavily influenced by the teachings of Jamal al-Din al- Afghani, Muhammad Abduh, Rashid Rida and others. Moreover, modernist revolution in Islamic thought, which emerged in Egypt, began to spread to Southeast Asia due to the expanding networks of social links between the Malay world and the Middle East.

    [8] Joseph Chinyong Liow, ‘Political Islam in Malaysia: legitimacy, hegemony and resistance,’ in Islamic Legitimacy in a Plural Asia, ed. Anthony Reid and Michael Gilsenan, London: Routledge, 2007, pp 167–87. See also Amrita Malhi, ‘The PAS-BN conflict in the 1990s: Islamism and modernity,’ in Malaysia Islam, Society and Politics, ed. Virginia Hooker and Noraini Othman, Singapore: Institute of Southeast Asian Studies, 2003, pp 236–67. Liow argues that the mobilisation of religion as a basis of political legitimacy has resulted in an ‘Islamisation race’ between UMNO and PAS where the party that has control over Islam monopolises social and political authority. The Pan Malaysian Islamic Party (PAS) is an Islamist political party that was founded in 1956 and apart from its brief inclusion into Barisan Nasional coalition between 1974 and 1978, PAS continues to be BN’s main Islamist opposition party.

    [9] Amanda J. Whiting, 'Secularism, the Islamic State and the Malaysia legal profession,' Asian Journal of Comparative Law, vol. 5, no. 1, article 10 (July 2010), online: http://www.degruyter.com/view/j/asjcl.2010.5.1/asjcl.2010.5.1.1287/asjcl.2010.5.1.1287.xml, site accessed 4 December 2013.

    [10] A fatwa is an opinion on Islamic legal issues issued by the Mufti who is the main advisor of Islamic law to the King. Whiting, ‘Secularism, the Islamic state and the Malaysia legal profession.’

    [11] Vidhu Verma, Malaysia State and Civil Society in Transition, London: Lynne Rienner Publishers, 2004, pp. 36–39.

    [12] NEP was launched in 1971 by then Prime Minister Tun Abdul Razak

    [13] Verma, Malaysia State and Civil Society in Transition, p. 100.

    [14] Anwar, ‘What Islam, whose Islam?’ pp. 227–52.

    [15] The federation has power and jurisdiction over matters that are essential and vital to the nation such as external affairs, defence, internal security, civil and criminal law and procedure and the administration of justice, citizenship, finance, trade commerce and industry, shipping, communications and transport, education, medicine and health, labour and social security. The state has jurisdiction over Islamic law, personal and family law of Muslims, the constitution, organisation and procedure over Shari'ah courts, land including land tenure as well as agriculture and forests. See Sharifah Syed Ahmad, Malaysian Legal System, Singapore: LexisNexis, 2007, p. 105.

    [16] Shari'ah laws in each state are administered at three levels in a system parallel to and independent of the civil courts: the Shari'ah Subordinate Court, Shari'ah High Court and the Shari'ah Appeal Court. Each court has a narrower jurisdiction than the next. All three courts also have jurisdictions over acts categorised as civil or criminal offenses such as marriage, divorce, nullification or separation, marital property claims, maintenance of dependents, guardianship, indecency, fortification and adultery amongst others. An appeal from the Shari'ah subordinate court will lie to the Shari'ah High Court. Similarly, the Shari'ah Appeal Court has appellate jurisdiction over decisions arising out of the Shari'ah High Courts with all appeals contested at the two lower levels heard by the Chief Shari'ah judge and two other members. See Ahmad, Malaysian Legal System.

    [17] Nevertheless, this parallel legal system is not as clearly delineated as it appears. Jurisdictional boundaries become muddled and are aggressively contested as demonstrated in recent apostasy and conversion cases. A Muslim woman who wished to remove her Islamic identity from her identification card after personally (and not legally) renouncing Islam had to seek appeal from the Federal court. Before this she had brought the case to the High Court but the High Court decided that it had no jurisdiction over the case claiming that it should be tried in the Islamic courts. A second case was a divorce case where the spouse converted to Islam after his marriage and filed for divorce and custody in Shari'ah courts, leaving the non-Muslim spouse to seek redress in secular courts. See Whiting, ‘Secularism, the Islamic state and the Malaysia legal profession.’

    [18] One explanation for the present day inferiority status of Shari'ah law and the secular foundation of the national legal system in Malaysia is the legacy of British colonial policy. See Hussin Mutalib, Islam and Ethnicity in Malay Politics, Singapore: Oxford University Press, 1990, p. 17.

    [19] Mutalib, Islam and Ethnicity in Malay Politics, pp. 23–24.

    [20] Mutalib, Islam and Ethnicity in Malay Politics, pp. 23–24.

    [21] Abdullah Saeed and Hassan Saeed, Freedom of Religion, Apostasy and Islam, Hampshire: Ashgate Publishing, 2004, pp. 150–53.

    [22] The different schools of Islamic jurisprudential thought (mazhab) accorded different criteria and a varying order of importance to a variety of jurisprudential tools such as, analogy (qiyas), juristic preference (istishsan) and independent human reasoning (ijtihad) in the formulation of Islamic law (fiqh). This gave rise to varying interpretations of Islamic law that remain primarily based on the Quran and Sunnah. The plurality of Islamic law flourished in the early period and had witnessed the birth of eminent scholars such as Abu Hanifah and Shafi’ie. Early jurists did not claim their opinions to be final and conclusive and were ready to admit the possibility of their errors. However, at the end of the third century, it was commonly accepted by a majority of jurists that the ‘gate of ijtihad’ (independent human reasoning) had been closed.22 As a result, rules regarding matrimonial law developed into a strict jurisprudence compiled in classical fiqh books according to different sects and contained within a special chapter known as munakahat (matters related to matrimonial rules). See Noor Zanariah, ‘Gender justice and Islamic family law reform in Malaysia,’ Kajian Malaysia, jld. XXV, no. 2, (Disember 2007): 121–56, online: http://web.usm.my/km/25(2)2007/01274082_25.2.2007_121-156.pdf, accessed 7 January 2014.

    [23] Hashim Kamali, Principles of Islamic Jurisprudence, Cambridge: Cambridge Texts Society, 1991.

    [24] Anwar, ‘What Islam, whose Islam?’ p. 233.

    [25] A few examples are worth noting: 1. The new laws introduced strict conditions before a man could be granted polygamy thereby maintaining the rights of the first wife; 2. A woman was entitled to apply for divorce on twelve different grounds (also known as fasakh); 3. A woman was entitled to a division of the matrimonial property whether she has financially contributed to its acquisition or not. The first reading of the bill was met with considerable resistance from a few male Muslim parliamentarians and eventually a three-line party whip had to be imposed to push the bill through. The jurisprudential method of takhayyur, the selection of opinions from other schools of thought, was the basis of the codification of Islamic family law in the 1980s. Professor Ahmad Ibrahim in consultation with Islamic scholars from JAKIM (Jabatan Kemajuan Islam Malaysia) moved away from the Shafi’ie mazhab and chose the opinions of the Hanafi school of thought that allowed for more gender equitable provisions. See Zanariah, ‘Gender justice and Islamic family law reform in Malaysia.’

    [26] The exceptions are Morocco and Tunisia. In Morocco the Code of Personal Status 1957–1958 (with major amendments made in 1993), does not permit polygamy. In Tunisia, the Civil Status Act of 1957 accords penal sanctions against polygamous marriages and amendments to the law since 1993 no longer requires a husband to maintain his wife and a wife to obey her husband. ‘Republic of Tunisa,’ Emory Law, n.d., online: http://www.law.emory.edu/ifl/legal/tunisia.htm, accessed 6 June 2011.

    [27] ‘Malaysia,’ Emory Law, n.d., online: http://www.law.emory.edu/ifl/legal/malaysia.htm, accessed 5 June 2011.

    [28] Joseph Chinyong Liow, Piety and Politics: Islamism in Contemporary Malaysia, New York: Oxford University Press, 2009, p. 126.

    [29] Zanariah, ‘Gender justice and Islamic family law reform in Malaysia,’ p. 148.

    [30] It is important to note that the 2006 amendments to the Islamic Family (Federal Territories) Act 1984 are applicable only in the federal territories of Kuala Lumpur and Labuan. Most states have not repealed the early amendments with their discriminating statutes. Given that the Federal Territories were the last to amend the Islamic Family law, the discriminatory statutes have been operative in other states since the early 1990s. This makes it easier for husbands who wish to contract a polygamous marriage to travel to another state, as has been the case in various reports that have surfaced in the media.

    [31] Gavin W. Jones, ‘Malay marriage and divorce in peninsular Malaysia: three decades of changes,’ Population and Development Review, vol. 7, no. 2 (June 1981): 255–78, p. 261.

    [32] It was stated that the divorce rates in 1950s in Kelantan and Terengganu were probably the highest in the world. Jones, ‘Malay Marriage and Divorce in Peninsular Malaysia.’ p. 261.

    [33] Zanariah, 'Gender justice and Islamic family law reform in Malaysia.'

    [34] The wife could obtain an order for the dissolution of marriage (fasakh) under Section 52, IFL 1984 on the grounds; a) the husband whereabouts have not been known for a period of more than one year ; b) husband’s failure to maintain the wife for a period of three months; c) husband’s imprisonment for a period of three years or more; d) the husband’s failure to maintain marital obligation; e) husband’s inability to perform sexually such as impotence that was present at the time of marriage without the knowledge of the wife; f) insanity, or leprosy, vitilago and venereal disease for two years; g) unconsummated child marriage that is repudiated by the wife before attaining 18 years old; h) habitual assault and cruelty of the husbands and his indulgence in immoral activities or attempt to force her to lead an immoral life, and also violation of the wife’s property rights. Section 52 The Islamic Family Law Act (Federal Territories), 1984; Section 53, The Islamic Family Law Enactment of Kelantan No 6/2002.

    [35] See Michael Peletz, Islamic modern Religious Courts and Cultural Politics in Malaysia, New Jersey: Princeton University Press. 2002, p. 119. According to Peletz in his study of Islamic courts in Malaysia, Islamic courts in Rembau, Negeri Sembilan (a state in the western coast of Peninsular Malaysia) are markedly different from Islamic courts in Kuala Lumpur even though these courts are generally expected to work within the framework of the Shafi'ie legal school of Islam. The finer details of Islamic Family Law in different states may vary. However JAKIM, the Islamic Center established in 1980, is primarily responsible for standardising laws and coordinating their implementation across different state religious authorities in Malaysia. See 'Vision, Mission, Objectives, Functions and Clients Charter,' Department of Islamic Development Malaysia, 7 January 2014, online: http://www.islam.gov.my/en/vision-mission-objectives-functions-and-clients-charter, site accessed 7 January 2014. That being the case, Peletz's argument resonates as his ethnographic study of courts in Malaysia reveals that Islamic courts in Kuala Lumpur and other urban settings tend to be more formal, bureaucratic and imposing than their rural counterparts such as in the rural districts of Rembau in Negeri Sembilan. It is no surprise then that Peletz concludes from his observations of court proceedings in Rembau that Islamic courts are 'intent on making available even to the poorest women a forum where they both voice their legitimate grievances and seek justice as defined by local agreements entailed in the marriage contract' (Peletz, Islamic modern Religious Courts and Cultural Politics in Malaysia, p. 134). Unlike Rembau, the bureaucratic and more formalised court procedures in Kuala Lumpur result in extreme delays in administering divorces. A husband who refuses to show up in court delays the divorce process initiated by the wife. In the case of polygamous marriage unbeknown to the first wife, a husband's failure to show up means that the wife is unable to legally and Islamically divorce her husband. See Liow, Piety and Politics, p. 124. In rural districts with closer and tighter social networks, these situations are avoided because Shari'ah subordinate court judges are able to send their assistants to physically contact and locate the missing husband and administer justice accordingly.

    [36] Joel S. Migdal, States in Society Studying how States and Societies Transform and Constitute One Another, United Kingdom: Cambridge University Press, 2001.

    [37] Migdal, States in Society Studying how States and Societies Transform and Constitute One Another, p. 252.

    [38] Mohammed Ayoob, 'Political Islam: image and reality,' in World Policy Journal, (Fall 2004), online: http://www.mafhoum.com/press7/221P6.pdf, accessed 7 January 2014.

    [39] Judith Nagata, ‘How to be Islamic without being an Islamic state,’ in Islam Globalization and Postmodernity, ed. Akbar S. Ahmed and Hastings Donnan, New York: Routledge, 1994, pp. 63–87.

    [40] Liow, Piety and Politics, p. 15.

    [41] 'Malaysia,' Emory Law, n.d., online: http://www.law.emory.edu/ifl/legal/malaysia.htm, accessed 5 June 2011

    [42] Sharifah Syed Ahmad, Malaysian Legal System, Singapore: Lexis Nexis, 2007, p. 172.

    [43] Ahmad, Malaysian Legal System, p. 172.

    [44] Liow, Piety and Politics, p. 129.

    [45] Liow, Piety and Politics , p. 129

    [46] Liow, Piety and Politics, p. 61.

    [47] Liow, Piety and Politics, p. 61.

    [48] Liow, Piety and Politics, p. 63.

    [49] Anwar, ‘What Islam, whose Islam?’ pp. 227–52.

    [50] Suhaini Aznam and A Letchumanan, 'Women protest family law bill,' Star Online (Kuala Lumpur), 21 December 2005, online: http://www.wao.org.my/backup_v1_21.7.2011/newslinks/Women%20protest%20family%20law%20Bill.pdf, accessed 7 January 2014.

    [51] Suhaini Aznam, ‘Women senators unhappy,’ Star Online (Kuala Lumpur), 23 December 2005, online: http://www.thestar.com.my/story.aspx/?file=%2f2005%2f12%2f23%2fnation%2f12949054&sec=nation, accessed 7 January 2014.

    [52] Suhaini Aznam, 'Nazri: Women senators must vote for family law bill,' Star Online, Kuala Lumpur, 22 December 2005, online: http://www.thestar.com.my/story.aspx/?file=%2f2005%2f12%2f22%2fparliament%2f12936393&sec=parliament, accessed 7 January 2014.

    [53] Anwar, ‘What Islam, whose Islam?’ p. 235.

    [54] Anwar, ‘What Islam, whose Islam?’ p. 237.

    [55] SIS's demands were: 1. An equal minimum age of marriage (eighteen years) for men and women; 2. Abolition of the requirement that the (male) guardian must consent to the marriage of a woman; 3. A standard form marriage contract in which all marriages contracted are monogamous and polygamy is prohibited. Polygamy would be allowed only in exceptional circumstances and would be governed by a special and separate marriage contract with the agreement of all of the parties; 4. An equal right to divorce and divorce only by judicial decree; 5. An equal division of matrimonial assets, instead of the present standard practice of awarding only one-third of the assets to the wife; and 6. An equal right to custody and guardianship of children. Out of their six demands, only three were partially granted. See Zainah Anwar and Jana S Rumminger, 'Justice and equality in Muslim family laws,' in Washington and Lee Law Review, vol. 64, no. 4 (2008): 1529–549, p. 1548.

    [56] Liow, Piety and Politic , p. 122.

    [57] The Islamic Family Law Act 2005 had included the clause that the proposed marriage was 'necessary or just' which implied that the husband did not have to prove to the court that he would be just.

    [58] Section 23 (9), Section 23 (3) and 23 (4), The Islamic Family Law (Amendment) Bill 2005 were removed from The Islamic Family Law Act (Federal Territories), 1984 (Amendment) 2006.

    [59] Aznam, ‘Women Senators Must Vote for Family Law Bill.’

    [60] Barisan Nasional (BN) which is a coalition comprising of UMNO, the Malay-based party, together with the Malaysian Chinese Coalition (MCA) and the Malaysian Indian Congress (MIC) has ruled Malaysia since 1973. UMNO, MCA and MIC had formed a coalition prior to 1973 formalised as the Alliance and held the seat of government in Malaysia since the country gained independence on 31 August 1957. Their hegemonic political power and complete jurisdiction in the Federal Territories of Kuala Lumpur and Labuan made it virtually impossible for PAS to threaten their political authority.

    [61] 'The SIS Story,' Sisters in Islam: Empowering Voices for Change, n.d., online: http://www.sistersinislam.org.my/page.php?35, accessed 7 January 2014.

    [62] Sisters in Islam: Empowering Voices for Change, n.d., online: http://sistersinislam.org.my/news.php?cat.51, accessed 7 January 2014

    [63] Aili Mari Tripp, Women and Politics in Uganda, Wisconsin: University of Wisconsin Press, 2000.

    [64] For further discussion on this see: Liow, Piety and Politics, p. 144.

    [65] Aznam, ‘Women senators unhappy.'

Main

Published with the support of Gender and Cultural Studies, School of Culture, History and Language, College of Asia and the Pacific, The Australian National University.
URL: http://intersections.anu.edu.au/issue36/mahmood.htm
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