Salbiah Ahmad Part 2

Thinking out of the box
Salbiah Ahmad
Mar 23, 06 3:01pm
Malaysiakini


SALBIAH AHMAD is a lawyer and an independent researcher. MALAYA! as the name for this column was inspired by the meaning of 'Malaya' in Tagalog which means freedom. The events at the end of 1998 in KL offer a new inspiration. MALAYA! takes o­n the process of reclaiming the many facets of independence.
Malaysiakini

The thrust of Marwaan Hadid's article actually sums up the case of the Islamic family law (IFL) reform debacle as well. I think all groups, be it the government, the opposition women's wings and NGOs have not looked beyond the pale of fiqh (juristic views/opinions).

The Sisters in Islam memorandum, adopted by JAG was employing the same process of selecting and patching (takhayyur and talfiq) of fiqh as the religious establishment it sought to critic.

These mechanisms have been used by reformers for family law reform since the birth of codification efforts in the nineteenth century pursuant to earlier successes of codification in the Ottoman empire. To those unfamiliar with interpretive literature, these mechanisms were employed for purposes of expediency and would not pass muster as so-called proper interpretive methodology by the founding fathers of fiqh. Nevertheless the selection and patching process has been useful in narrowing differences among schools for purposes of administration of the law.

Even where a fiqhi view was declared to be ijtihadi (re-interpretation) based on 'women's experiences', these constituted tweaking of mainstream frames as for example in the male right of talaq (divorce) or the conditional contract of marriage or ta'liq.

For example there was nothing in JAG's memorandum on the IFL to un-stage the talaq and opting for a common divorce application for either parties to the marriage in the syariah court. Why were the methods employed by Sisters in Islam in the memorandum unable to moot this idea from the Islamic heritage and reformation theories?

For the uninformed, the conditional contract was a practice invented before the advent of family legislation. It is not a contract between equals. Its terms are limited in most cases to divorce in relation to non-maintenance or violence. Upon a breach of terms, the wife may lodge a complaint in court whereupon upon proof, the court would grant a divorce by ordering the husband to pronounce a talaq divorce. A divorce under ta'liq is theoretically (early juristic) premised on the husband's right of talaq.

A harlot to democrats and despots

There is a preponderance among groups, Muslim intellectuals and the religious authorities/institutions, to rely on maslaha (public interest) as an ijtihadi methodology in doing the cut and paste job. Maslaha cuts both ways. The logic of public interest, says Khaled El Fadl (2003), is like a harlot: it offers its services, as effectively as possible, to democrats and despots alike.

From this perspective, the notions of being medieval-misogynist or enlightened appear inconsequential as the parties are basically working from the same mould. On Mar 16, Mohd Nazri Abdul Aziz (BN) in answer to a parliamentary question by Fong Ko Puan (DAP), said that the IFL is not contrary to Islamic law. He may have said that tongue-in-cheek, but that is arguably, legally correct.

My main concern in the IFL saga is the proclaimed gender or feminist approach by the women campaigners in JAG which may not actually conform to its current or postmodern theoretical bases. In my view, this is the weakness of the campaign. I think it unfortunate if that weakness passes off for theory and practice and unwittingly jeopardizing future articulations of feminist/gender theory in the rights discourse.

I invited a reflection of exegesis in the light of historical gender relations last week. In my view, a fiqhi approach is inadequate without re-imagining exegesis. I am convinced that this is the particular course required to further a gender equality jurisprudence under Article 8 of the Federal Constitution for both women and men. I have put some of my initial thoughts on paper last November for the Malaysian Law Conference.

The one other necessary point for mention is the unfortunate anachronism. Anachronism is the reading into the past, categories of thought and practice which belong to recent times. The assertions of slavery and apartheid for instance sparked protests from males and groups like the Muslim Professional Forum (MPF). PAS Muslimat took offence at the comparison between Muslim and non-Muslim women's rights. There was absence of helpful analysis.

Not all Muslims are easily persuaded by the speeches of Sisters in Islam, mainly because Sisters do not address particular concerns of Muslims living in a post-colonial multicultural Malaysia and Muslims who read beyond what the group has to offer in analysis.

Women are inferior to free men

For the record, medieval Muslim theory confers legal personality on all persons in muamalat (transactions). A Muslim woman has legal personality. In medieval civil law, a woman's personality is subsumed to that of her husband. She has no right to sue and be sued. That of course has changed today. It took several centuries. It was only in 1992 that England for instance ruled that marital rape was recognized, in that a wife cannot be deemed at law to have consented irrevocably to sexual intercourse.

The classical Muslim legal theory, however drew a distinction between legal personality and legal capacity. Thus people have capacities different from each other namely, between Muslims and non-Muslims, between men and women and between free persons and slaves. The fullest capacity is that of a free Muslim male. As in the case of non-Muslims and slaves, women are inferior to free men.

While the Prophet decreed that humans are equal as the teeth of a comb, the founding jurists interpreted that injunction according to the norms of their time.

A wife in classical Muslim law theory, has a right not to be subjected to acts that may impair her health, a right to perform her religious duties/rituals, the right to own and administer her own property, the right to have family relations with her parents and relatives and the right to socialise within her home including entitlement to female companionship.

Cedaw subject to Islamic law

Muslim women today, in effect have more rights than those developed more than a hundred years after the death of the Prophet in 632 AD. Today she is prevented from accessing her full rights as enshrined under the 1979 Women's Convention which Malaysia has ratified in 1995. Malaysia in preventing that access has also invariably prevented all Malaysian women that same access by her reservations to the Convention as being subject to Islamic law.

While it is correct that jurists accorded Muslim women more rights than what is accorded to women in the civil law tradition at a particular time, Muslim women's rights, I would say in fiqh literature, are caught both in a time bind and in "malestream exegesis".

For a long time now, Islamic law has been studied as integral to the orientalist project. Islam and Muslim societies are regarded as essentially rooted in conservative and backward looking practices. Its legal system is assumed to hold back development of society and its adaptation to historical processes. Islamic law is often perceived as incomplete and essentially defective.

It would be unwise to compare Islamic law and Western or European law (Civil law) by a transcultural approach. The characterisation of legal systems is not strictly speaking located in culture but in time (Strawson, 1993).

Breach of development of Islamic law

Islam in seventh century Arab society, adapted past culture forms of law-making to radically new conditions. This process is common in the legal history of societies in the wake of revolutionary change. English common law has been adapted from its feudal form to modern industrial society.

As legal culture becomes an object of colonization or occupation, Islamic law has to be conquered by reducing jurisdiction or outreach. The effect of colonial intervention and Western/European influence in the Muslim world has created a breach in the historical development of Islamic law. The reaction to Western/European power has been a claim to return to the Quran and Sunna through interpretation of these sources.

A cut and paste methodology from fiqh literature currently used by state authorities involves a reading back or refers to the scholarship of previous generations incorporating the cultural norms of male-female roles of past Muslim societies, some as far back as the seventh or ninth century.

Our perceptions of male-female gender roles have certainly evolved. Feminist legal theory can be said to be based on analysis of gender rooted in patriarchal and capitalist relations. The focus of analysis in feminist legal theory is on the ideological nature of law that is in the way in which law operates to reinforce unequal power relations by naturalising and universalising patriarchal and capitalist relations.

Scholar-theologians like Amina Wadud and Asma Barlas have proposed a re-reading as meanings are not fixed. However, through the course of time and tumultuous historical events, Muslim communities continue to normalize patriarchal readings/interpretations of the sources of Islamic law.

In her forthcoming book, Inside Gender Jihad, Women's Reform in Islam, (Oneworld Publications) Amina explores "the legitimate articulations of indigenous Muslim intellectual and political confrontation to two influential epistemologies: Western discourse of globalisation, democracy and human rights and progressive Islamic discourse that is creating a unique response to Islamic origins, historical and ideological development into a trajectory essential to an Islamically authentic and indigenous reconstruction of globalisation, democracy and human rights".

Malestream perspective

Amina does not discount gender theory but her pro-faith journey in Gender Jihad emanates from the notion of the human being based on a relationship with the divine. Sacred systems are not incorrigibly patriarchal and beyond redemption. She "wrestles" with the "hegemony of male privilege in Islamic interpretation as patriarchal interpretation, which continuously leaves a mark on Islamic praxis and thought. Too many of the world's Muslims cannot perceive a distinction between this interpretation and the divine will, leading to the truncated notion of divine intent….limited to the malestream perspective."

My understanding of these discourses does not rule out feminist/gender analysis in furthering the gender equality of women and men as a fundamental right.

JAG in the IFL memorandum did not dissect 'women's experiences' into a theoretical base of biological sex differences and interpretations of behavior that are culturally associated with sex differences. This is why I think the re-imagining of exegesis together with feminist theory would be crucial in the development of a gender-based fiqh or informing the selection of existing fiqh in law reform.

The aim of gender equality is the eradication of the disabilities that are imposed on women and men based on the cultural definitions of her/his role in society and discrimination based on her/his biological-sex traits.

Law reform including family law reform of Muslims and non-Muslims must take off from this trajectory.



References:

Khaled El Fadl (2003) Islam and Democratic Commitment. Fordham Int'l Law Journal. Vol 27:4, pp 4-71

John Strawson (1993), Encountering Islamic Law. Conference Paper. Critical Legal Conference, New College, Oxford.