Malaysian Family laws

Updates – the good news and the bad news
The good news is that, because of your overwhelming support and help in response to our previous appeal, the Malaysian government recently announced that it would put on hold the gazetting of the controversial Islamic Family Law (Federal Territories) (Amendment) Bill 2005.
The bad news is that this non-gazettement is only valid for the Federal Territories, and not for the remaining states in the federation of Malaysia that have adopted these unjust amendments into their respective Islamic Family Laws. Since Islam is a state matter, it means that Muslim women living in these 11 states continue to be affected by its unjust clauses.
However, this recent announcement by the Malaysian government truly is a significant and historic victory in the campaign to protest this unjust Bill, and we are continuing to gain unprecedented support in this campaign. Thus, we would like to extend our deepest and most heartfelt thanks for your help, care and concern for this issue. This recent turn of events was made possible largely due to the support of people like yourselves.
Nevertheless, we appeal to you to continue your support for us. This campaign has only just begun, and we need to intensify it in order to truly achieve sustainable and favourable change for Muslim women all across Malaysia.
Sisters in Islam also found its office broken into recently, with our Executive Director’s computer monitor and CPU mysteriously missing, while everything else in the office was left mostly intact. We do not know who the culprits are at the moment. However, this leads us to believe that the road ahead of us is fraught with challenges.
Call for action
Once again, it would be extremely helpful if like-minded Muslims around the globe expressed their concern to the Malaysian government regarding this issue. Please write to:
The Right Honourable Dato' Seri Abdullah Ahmad Badawi
Prime Minister of Malaysia
E-mail: ppm@pmo.gov.my
The Honourable Dato' Seri Shahrizat Abdul Jalil
Minister of Women, Family and Development
E-mail: info@kpwkm.gov.my
Please congratulate the Malaysian government’s decision to keep on hold the gazetting of the Islamic Family Law Bill 2005. However, please also call for the Malaysian government to:
§ Ensure non-gazettement of this Bill at the federal level,
§ Ensure and place a moratorium on the implementation of this Bill at the state level,
§ Draft a new Muslim Family Law based on the principles of justice and equality, in consultation with ordinary citizens and women’s groups all across the country, and
§ Respect universal human rights, especially of Muslim women in marriage, and to explore alternative interpretations of Islamic law that uphold gender equality and universal human rights.
Please also express your concern that dissenting voices to this Bill should not be intimidated or coerced into silence by parties in ! support of the Bill, whether they are state or non-state actors.
Please also bring this to the attention of like-minded networks around the world. We continue to value, and humbly thank you for, your support and concern.
Wassalam.
Sisters in Islam
Petaling Jaya
Malaysia
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Background
The Bill was passed unanimously by the Senate in December, despite vehement objections by women Senators and several women’s groups. Since its passing, there has been unprecedented outrage amongst Malaysians, whether men or women, Muslim or not.
The protests all argue that the amendments:
§ Are extremely damaging to women, and
§ Were passed in an absence of transparency and in mockery of the democratic process.
The five clauses of the Bill that were objected to were:
1. Making polygamy easier by amending the existing condition of “just and necessary” to “just or necessary”.
2. Increasing the husband’s power to divorce by extending fasakh - judicial order for dissolution of marriage - to the husband as well. The provision for fasakh previously granted women 12 grounds for divorce. The amendment to this is discriminatory because the husband still retains his unilateral right to divorce (talak) anywhere, anytime without reason, and even through sms.
3. Enabling husbands to prevent the disposition of property by a wife or former wife, in order to protect the husband or former husband’s financial claims on the woman’s property. This amendment, already adopted in Johor state, has led to our first case of a husband obtaining a court order to freeze the bank accounts of his wife in order to claim matrimonial property.
4. Removing the husband’s responsibility of maintenance in cases of polygamy or divorce. A new section forces the wife of her polygamous husband to choose, as alternatives, either to apply for order of maintenance or to apply for order of division on joint matrimonial property (harta sepencarian).
5. Enabling the husband to claim harta sepencarian from his wife or existing wives, in cases of polygamy or divorce.
Despite this, Minister in the Prime Minister’s Department, Abdullah Md Zin, has declared the Bill “perfect” and “without comparison among all countries in the world”. (Berita Harian, Wednesday, 28 December 2005.)
The amended Bill: Fantasy vs. Reality
A cursory glance will demonstrate that the Minister’s claim is a fallacy. If we were to benchmark against best practices in terms of gender equality, we will see some glaring contradictions between laws in Malaysia and laws in the rest of the Muslim world, for example:
§ In the cas! e of polygamy, Tunisia bans it on the understanding of Surah An-Nisa, Verse 129, that no husband can treat their wives equally.
§ Regarding rights to divorce, in Bangladesh and Pakistan, wives can instate an optional clause in their taqliq (marriage contracts) t! o claim talak tafweed (where the right to divorce is given to the wife without losing her rights to guardianship nor property).
§ Regarding an overall reframing of Muslim personal status laws, Morocco has produced an amended Moudawana that has been hailed as one of the most progressive Muslim family law codes in the world, in terms of securing gender equality and justice.
In reality, the Islamic Family Law Bill was amended in 1984, and these amendments were a good step towards securing Muslim women’s rights within marriage at that time. However, a series of amendments in 1994 rolled back several of these rights. Muslim women have since suffered greatly, whether due to biases in the Shari’ah judicial process or gender bias in the substance of the law itself. Furthermore, Islamic laws fall under the jurisdiction of the individual states in the federation, and hence these laws were not streamlined for a long time. This latest series of amendments is ostensibly meant to streamline the different versions of Malaysia’s Islamic family laws to ensure more effective application, but has instead exacerbated the vulnerability of Muslim women in marriage.
Responses to the Bill
To date, several women’s groups, both secular and faith-based, have responded vehemently to the passing of this Bill. Several ordinary citizens of all faiths, men and women, have also been writing to the press, and to the Malaysian government, to express their outrage over this issue. A group calling itself Muslim Men for Gender Equality has also issued letters to the press protesting the passing of the Bill. The outrage of ordinary citizens and civilian groups is unprecedented, but there is sti! ll a significant amount of support for this unjust Bill amongst several key figures in government, Muslim politicians from both ruling and opposition parties, and also several Muslim non-governmental organizations.