Mr. Rebates

Tuesday, November 16, 2010

(Malaysia) Model Islamic Family Law

Muslim family laws that govern the relationships between men and women based on a framework of the superior husband and the subordinate wife are unsustainable in the twenty-first century. The medieval legal reasoning that defined the roles of the husband as ‘providing’ and the wife as ‘submissive’ has little bearing on today’s realities, especially in view of the changing status and roles of women and men.

The Qur’an provides a wealth of guiding principles to develop a new body of law on family relationships based on justice and equality. This knowledge has led SIS to commit its resources to the comprehensive reform of the Islamic family laws in Malaysia.

Reform is possible—and eminently desirable—on several grounds. First, the Qur’an directly upholds principles of Islam that support relationships based on equality between men and women, and between husbands and wives. Furthermore, these laws are based on divine and immutable. The codified law is not the sacred Syariah itself, but the product of human engagement with the revealed text. Prime Minister Datuk Seri Abdullah Ahmad Badawi himself has supported the idea of reform, saying that ‘the renewal of Islamic thought must be an on-going process --- ensuring the universality of the message, its pluralism and diversity, and not be ossified and fossilised by blind imitation of traditional thought and opinion’.

Secondly, existing Islamic family laws in Malaysia contravene provisions of the Federal Constitution, such as Article 8(2), which specifically forbids discrimination on the basis of gender. As they stand, the individual family laws in each State also violate key aspects of our domestic policies, and contain provisions that have proven inequitable compared to civil laws governing the same matters for non-Muslims.

Malaysia must also institute legal reform if it is to fulfil its commitments to international human rights standards. Our country is a signatory to the UN Convention on the Elimination of All Forms of Discrimination Against Women and the UN Convention on the Rights of the Child. In addition, Malaysia is morally—if not legally—bound to observe the Universal Declaration of Human Rights, which is generally recognised as international customary law, the Beijing Declaration and Platform for Action and the Non-Aligned Movement’s Putrajaya Declaration, which Malaysia strongly promoted in its role as host and chair of the meeting at which it was adopted.

Finally, our Islamic family laws must reflect the realities of modern life. As the Prime Minister said: ‘Ensuring the rights of women will require reform and renewal in Islamic thought… The problems that contemporary Muslim societies are confronted with today are not the problems of the sixth century, and the solutions we need today do not lie with the notion of a Syariah purportedly final and complete fourteen hundred years ago - particularly in the case of women.’ Our laws must, therefore, address the complexities and realities of modern life while accounting for the universal and eternal principles of justice and equality in Islam.

In 2005, SIS began its work on a model Muslim Family Law based on the principles of justice and equality. The model law would serve as a lobbying tool to promote law reform and provide material for SIS public education and training programmes on women’s rights in Islam.

Throughout 2005, key members and supporters of SIS worked on a draft of the model law and arguments for reform. This work was inspired by successful law reform movements in the Maghreb countries (Morocco, Algeria and Tunisia). In the Maghreb process, Collectif 95 Maghreb-Egalité, a network of activists and organisations, produced a 'Guide to Equality in the Family in the Maghreb' that outlined arguments supporting reform from four different levels: doctrinal arguments, sociological arguments, universal human rights arguments, and domestic law arguments. This Guide supported their law reform efforts, including the successful reform of the Moroccan Moudawana in 2004. The Maghreb 'Guide to Equality in the Family' was translated into English and Persian by Women's Learning Partnership.

In October 2005, SIS held a national consultative meeting with the Joint Action Group for Gender Equality (JAG) and several individual lawyers. As a result of this work, SIS produced a 194-page document entitled the 'Guide to Equality in the Family: A Just and Equitable Family Law for Malaysia'. The Guide comprehensively addresses the necessity for reform and provides arguments to support the key concepts in the draft model legislation, such as the equal right to marriage and divorce and substantive equality in financial provisions. The Guide also contains the draft model Muslim family law bill itself.

The value of the Guide lies in the fact that SIS grounds its arguments using a holistic framework that includes the religious perspective, national laws and policies, international human rights principles, and the realities of Muslim women's lives today. An additional section provides accounts of best practices in the Muslim world in each key area of family law.

The draft was presented to international scholars and activists in March 2006 at a workshop entitled 'Trends in Family Law Reform in the Muslim World'. Today, the Guide continues to be a work in progress.

SIS has since built on the March 2006 workshop and its collaboration with organisations in countries around the world to initiate Musawah, a Global Movement for Equality and Justice in the Muslim Family, which was launched in February 2009 at a Global Meeting in Kuala Lumpur. More information on Musawah can be found on the Musawah website

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