International: Seeking justice through Islam

The Sun - Malaysia
Islamic scholars and thinkers confirm that there is a need to question laws made in the name of religion, to ensure justice is done.
Ziba Mir-Hosseini is very clear about one thing - the issue of Islamic family laws around the world must be understood as a political issue.
The School of Oriental and African Studies' (SOAS) research associate and author of several books including, Islam and Gender, the Religious Debate in Contemporary Islam says historically, Islamic laws were a collection of opinions that constituted a kind of common law.

But with the rise of modern nation states in the 20th century, this process was replaced by the creation of a central system that codified laws in the same way that civil laws are made.

"This resulted in specific opinions being selected to become law. It became rigid. For example, there are a minimum of 300 opinions on divorce but when the law is codified, only one opinion is used," she tells theSun.

This selection and codification of particular opinions, she says, is determined by the value systems of religious authorities and governments, pointing out that these laws are very patriarchal.

Dr Ziba, an Iranian anthropologist who lives in London, adds that while Islamic law was dynamic and progressive in the early days, it was marginalised during colonialisation and the rise of secularism, and as a result has lost some of its dynamism.

"Islam is today being used as a political ideology and we need to ask what aspects or interpretations of Islam are being codified," she says on the sidelines of an international consultation on "Trends in Family Law Reform in Muslim Countries" in Kuala Lumpur organised by Sisters in Islam (SIS) from March 18 to 20.

SIS legal consultant Nik Noriani Nik Badli Shah says that too often, when referring to Islamic law, the terms syariah (divine sources of law comprising the Quran, and the Sunna or the practices of the Prophet as contained in hadith) and fiqh (human interpretations of the divine sources) are used interchangeably.

"The fiqh rules of the past were a human approximation of an understanding of the divine syariah in the circumstances of their times, and the efforts by Muslims today will also be a human approximation," she says.

This distinction, adds Dr Ziba, accounts for the emergence of various schools of Islamic law and within them a multiplicity of positions and opinions. "I contend that the patriarchal interpretations of the syariah can and must be challenged at the level of fiqh, which is nothing more than the human understanding of the divine will."

Dr Ziba argues that Islamic family laws today cannot be just unless they uphold equality between men and women. "It is the distinction between syariah and fiqh that enables me - as a believing Muslim - to argue for gender justice within the framework of my faith."

She also points out that most rulings concerning women and gender relations belong to the realm of mu'amalat (social or contractual acts), rather than ibadat (ritual or spiritual acts). "This means that Muslim jurists consider these rulings social and contractual matters, and thus open to rational considerations."

Kyai Hussein Muhammad, a respected Muslim scholar who runs a religious school in Indonesia, agrees.

"There is a need to question which version of Islamic teaching is being used to codify these laws," he says. "The most important principle should be justice and equality because that's what Islam is all about."

Cassandra Balchin, from London-based Women Living under Muslim Laws, observes that Malaysia's Islamic family law lacks enabling provisions that will allow women to access their rights. For example, stronger marriage contracts where women can specify conditions in the marriage including how much dower should be paid at the time of marriage and restrictions on polygamy.

"Saudi women use these very effectively to protect their rights," Balchin says. "A marriage contract enables a couple to pre-negotiate and pre-agree how their marriage will be run. This can forestall many disputes."

Historically, marriage was seen as a contract that was negotiable, she adds. "Historically, women's rights were recognised in Muslim societies. We are not demanding for something new but are reclaiming past practices."

Dr Ziba adds that Islamic family laws are meant to protect the family institution. "But Islamic family laws which give men the right to polygamy fail to do this because women are constantly made to be insecure in a marriage."

And the Moroccan experience has shown that progressive Muslim family laws are effective in protecting marriage and the family.

Amina Lemrini, an exco member of the Association Democratique des Femmes du Maroc - an NGO that promotes women's rights in Morocco - says since major reforms were made to the Code of Personal Status (alMoudawana) two years ago, divorce rates have fallen between 25% and 70%.

"The Code is based on the philosophy of a balanced and equal relationship between men and women," she says, adding that governments who value the family institution should strive for such laws.

by Jacqueline Ann Surin, Asst News Editor
The Sun - Malaysia
23 March 2006