Memorandum On Reform of the Islamic Family Laws and the Administration of Justice in the Syariah Sytem in Malaysia
Submitted to the Government of Malaysia March 1997
For years, Muslim women in Malaysia have complained about the injustice they have suffered in the syariah system, both when they seek help and advice at the Religious Departments and when they seek judicial redress to their problems in the Syariah Courts.
In spite of speeches and public support for the plight of women under the syariah system from the Prime Minister and Deputy Prime Minister, in spite of the continual newspaper coverage of the problems women face in getting access to justice, no comprehensive action has been taken to end. The widespread suffering of women and children when marriages break down.
The seeming arbitrariness with which judgments are made had left many women with the impression that the Syariah Courts are unable to give women a fair hearing and have failed to play the role of the impartial arbiter in cases of dispute between two parties. The widespread report of the injustice women have suffered in the syariah system has undermined women's confidence that the system can indeed dispense justice.
Unless urgent action is taken to deal with this problem comprehensively, the syariah system lies in danger of becoming increasingly ineffective in dealing with the myriad social problems that arise in our fast modernising society. Malaysian women believe that many among those in religious authority continually display a brazen disregard for the interest of women and children.
A recent research conducted by the Women's Crisis Centre in Penang, which examined cases and judgments of the Syariah Courts of Kuala Lumpur, Johor Bahru and Penang, confirmed the injustice and obstacles women face especially in their applications for divorce and maintenance.
And yet, Malaysia's Islamic Family Law is one of the most enlightened laws among Muslim countries. It grants women many rights and protection from injustice. A woman is entitled to apply for cerai fasakh on 12 different grounds. She is entitled to cerai taklik if her husband breaks the marriage contract by failing to maintain her for more than four months, or by abusing her or by deserting for over a year. She is entitled to mutaah (compensation) if she has been divorced without just cause. She is entitled to a division of the harta sepencarian, whether she has financially contributed to the acquisition of the asset or not. The labour and time she has put in as mother and wife are taken into consideration.
In spite of the many enlightened provisions of the law, we hear endless complaints from women that they are not able to access those rights granted to them. Those rights often remain on paper only because of prejudices and weaknesses in the implementation of the law and in the syariah system itself.
First, is the blatant gender bias displayed by many Syariah Court judges in their judgments. While a man with just the pronouncement of talak can divorce his wife instantaneously, a woman initiating divorce has to face years of obstacles and delays, before she can obtain her divorce, if at all. This, in spite of sufficient evidence to qualify her for divorce under the many conditions provided in law. When a woman initiates divorce, the Syariah Courts seems to be obsessed in wanting to maintain the marriage, even at the expense of justice. But when a man initiates a divorce, there seems to be little interest to try and save that marriage. The man's wish is usually granted in just one hearing.
Second, a woman has to endure endless delays to obtain a divorce. No time limit has been set at each step of the process a woman has to go through in her application for divorce. The husband's failure to attend counseling sessions, to be present at court hearings, to attend arbitration proceedings can delay the divorce by several years. Even though the law provides that the hakam appointed by the court can pronounce divorce on behalf of the husband if the parties fail to effect reconciliation, the court is most reluctant to use this provision.
Third, the absence of one federal syariah system administering one uniform Islamic Family Law for the whole country enables men to take advantage of the most convenient law for personal gain. Thus in the case of Aishah Abdul Rauf vs Wan Mohd Yusof Wan Othman, the defendant was able to circumvent the decision of the Selangor Syariah Appeal Committee which rejected his application to marry another woman by simply crossing to the State of Terengganu to get married. Not only does the Selangor decision have no jurisdiction in another state, Terengganu's polygamy laws do not require the permission of the first wife, and the applicant does not have to fulfil any specific conditions before permission is given. The decision is totally left to the discretion of the judge.
In a similar manner, a man who has been ordered to pay maintenance to his wife and children can easily evade payment should he move to another jurisdiction. Thus a court order issued in Kuala Lumpur cannot be enforced if the man transfers to Petaling Jaya or any other state. The Syariah Court of one state has no jurisdiction to enforce an order given by the court of another state. Before the amendment to Article 121 of the Federal Constitution, the magistrate's court could countersign an attachment order to deduct a fixed sum from a husband's monthly salary to enable direct payment of maintenance to be made to the wife and children. This can no longer be done. The woman has to go through a fresh application process to get an enforcement order from the state in which the children's father is residing.
Fourth, we are aware that one of the problems that has led to delays and shortcomings in the administration of the law is the severe resource constraints faced by the syariah courts. There is a shortage of qualified staff in most courts, ranging from judges to prosecutors to summons servers. Thus cases are often delayed, summons are not served, appeals are not heard. We have been informed that only the Kuala Lumpur Appeals Committee is fully functional. In other states, appeal cases are left unheard because the Appeals Committees have not been constituted or had lapsed because of transfers or retirement of judges. This grave error in the administration of justice must be redressed immediately.
These issues represent serious and urgent problems that beset the administration of justice in the syariah system in Malaysia. The gravity of the shortcomings have reached a stage where women are no longer confident that they can obtain justice through the system and where men feel that they can blithely ignore Syariah Court summonses and break the law with impunity.
On December 11 1996, Sisters in Islam and the Association of Women Lawyers submitted a memorandum on Reform of the Islamic Family Law on Polygamy to the Prime Minister, YAB Datuk Seri Dr Mahathir Mohamad. This second memorandum which takes a comprehensive look at the Islamic Family Laws as a whole, contain proposals for reform of the substantive law, Syariah Court procedures and administration of the courts and the State Religious Departments. We appeal to the Government to initiate urgent action and reforms that will improve the delivery and administration of justice in the syariah system of Malaysia.
PART 1: AMENDMENTS TO THE ISLAMIC FAMILY LAW ACT WHICH ARE DETRIMENTAL TO WOMEN
*All the statutory provisions, unless otherwise specified, refer to those under the Islamic Family Law (Federal Territory) Act 1984.
This is already reflected in the 1996 research conducted by the Women's Crisis Centre in Penang (WCC) which found that the number of men who, in contravention of the law, pronounced the talaq outside the court, is more than three times those who applied for divorce through the courts.
Few other provisions in law are violated with such impunity and regularity as the divorce provisions under the Islamic Family Law Statutes. We believe that the proposed fine and custodial sentence, if enforced strictly, will help to deter errant husbands from taking advantage of the loopholes in the law. Moreover, it will also help to inculcate respect for Islamic Family Law among Muslims.
2. Iddah Maintenance
A provision intended as a right and privilege of a wife to occupy the marital home during the iddah period has been misused to compel the wife to remain there as an obligatory duty. We find that many husbands misuse this provision to evade their responsibility to maintain their wives during the iddah period.
However, when such cases go to court, the women's evidence is often disregarded even when the husbands fail to appear to prove their allegation of nusyuz. In one case cited in the WCC research, the judge declared that the wife was nusyuz because she had left the marital home during her iddah period. The plaintiff claimed that she had left with her husband's permission. Even though the husband was not in court to confirm or deny this, the judge declared that the woman was nusyuz and therefore was not entitled to nafkah iddah. No reasons for the decision were given.
(ii)In the meantime where an allegation of nusyuz has been made against the wife by the husband, it must be proven in court with strict corroborative evidence.
PART 2: ADDITIONAL RECOMMENDATIONS CONCERNING THE ACT / ENACTMENTS
(a) We believe that the present requirement of appointing a conciliatory committee under section 47(5) and Hakam under section 48(1) of the Act pending a divorce in addition to the compulsory counseling conducted by the Religious Department unnecessarily prolongs and complicates the process of applying for a divorce. This results in hardship and a great deal of inconvenience to the parties.
To avoid a situation where the parties have to undergo
several overlapping processes of conciliation, we propose:
(b) With respect to counseling or arbitration proceedings pending an application for divorce either by a husband or a wife, we suggest that a definite time frame be set in order to avoid causing unnecessary hardship and delays to the parties.
(ii) a time frame of six months within which the two Hakam referred to in section 48, should attempt to reconcile the parties. If arbitration fails within the period of six months, the court should proceed to record the pronouncement of one talaq by using its powers under section 48 of the Act.
(c) As a consequential amendment, we propose:
2. Divorce Order in Default of Appearance
Many women have had to endure inordinate and unjust delays often over several years, in their application for divorce that result in a situation of "gantung tak bertali". This is largely due to the husband's failure to appear in court in spite of repeated summons.
In the case of Faridah vs Habibuilah, it took six long years before the plaintiff was finally granted a divorce after she applied for cerai taklik in 1989 on the grounds that her husband had abused her. The Selangor Syariah Court rejected her application for divorce because it accepted her husband's allegation that she was nusyuz as justification for the abuse. It took a declaration of apostasy, a failed attempt to have her case heard in the civil court, followed by intervention by the Syariah court of another jurisdiction before divorce was finally granted in 1995. The case was transferred to the Johor Bahru Syariah Court which granted the plaintiff cerai fasakh when the husband failed to appear after three hearing dates were set.
3. Cerai Taklik
Even though the law provides that a married woman is entitled to a divorce if her husband has breached any of the terms of the taklik certificate, in practice many women face numerous obstacles in obtaining such a divorce. For example in cases of wife abuse, the court has often rejected medical and police reports of violence, demanding instead the evidence of eye witnesses. In cases of abandonment, the court often goes to extraordinary lengths to trace the whereabouts of the husband instead of relying on the evidence of witnesses regarding the alleged abandonment. In cases of non-maintenance, whilst the taklik agreement provides that the wife is entitled to a divorce upon the non-payment of maintenance after a minimum period of four months, the court is often reluctant to grant a divorce as provided for under section 50 of the Act. Even when the husband has failed to maintain the wife for years.
In case mal No. 254/96 cited in the WCC research, the plaintiff who had applied for cerai taklik on the grounds that her husband had abused her and had not provided her with maintenance. In addition to being a drug addict who had been imprisoned, the judge denied her the divorce and ordered her to return to her husband and to be obedient to him! This, at a hearing where the husband did not even bother to make an appearance. What was the basis of the judge's decision is anyone's guess.
(ii) in cases of abandonment, the court should advertise the taklik application and if within three months the husband does not appear the divorce should be granted.
(iii) in cases of non-maintenance, if the wife can furnish two witnesses, either male or female to testify that she has not been maintained for the period stipulated in the taklik agreement, the court should grant her the divorce.
4. Taklik Agreement
A standard taklik agreement should be adopted by all states. The current taklik agreement varies from state to state. Perlis does not even have a taklik agreement.
(ii) the lafaz taklik should be made by the husband in the presence of the wife.
Besides the right to maintenance during marriage and to iddah maintenance, the right to mutaah should also be emphasised. We are of the view that the description of muta'ah as a "consolatory gift" (section 56) is misleading as it gives the impression that it is merely a voluntary payment made to a divorced woman by her former husband. According to the Shafi'i school, mutaah is an obligatory compensatory payment due to every woman who is divorced without just and sufficient grounds.
In Islamic jurisprudence, nusyuz pertains to the conduct of both spouses, and not just the wife. The Quran itself talks about nusyuz by the husband (4:128) and nusyuz by the wife (4:34). Syed Qutb in his book In the Shade of the Qur'an defined nusyuz as "disruption of marital harmony by either spouse."
Section 59(2), however, defines nusyuz as a situation when a wife "unreasonably refuses to obey the lawful wishes or commands of her husband.."
(ii) a new provision be added to the Act to make it an offence for the husband to commit nusyuz which is defined under Hukum Syarak as "failure to provide the wife with adequate maintenance, clothing, place of abode and her entitlements according to Hukum Syarak". A penalty consisting of a fine not exceeding one thousand ringgit or imprisonment not exceeding six months or both such fine and imprisonment should also be provided.
PART 3: COMMENDATIONS CONCERNING PROCEDURAL AND ADMINISTRATIVE REFORM
1. Syariah Civil Procedure Code
One of the weaknesses in the administration of the Islamic judicial system is the absence of a comprehensive legislation regulating the practice and procedure in all matrimonial proceedings in the Syariah courts. We therefore propose the enactment of a comprehensive civil procedure code on Syariah which should also include powers of execution and enforcement of Syariah court judgments. The Selangor Civil Procedure Code Enactment should be used as a model. Specific training of Syariah judges in this area should also be made compulsory.
2. System of Binding Precedent
We propose that the Syariah court adopt the system of binding precedent similar to that practised by the civil courts. This would ensure that the Syariah courts of first instance would be bound by the decisions of the Syariah Court of Appeal. The decisions of the Syariah Appeal Court could be equated to a fatwa normally issued by the Islamic Affairs Council, except that the Appeal Court would rule only on matters concerning Islamic Family Law. This will avoid the tendency for judges to give widely disparate decisions in cases involving similar facts, or to give decisions influenced by personal prejudices.
3. Federal Syariah Court of Appeal
We welcome the recent announcement by the government regarding the establishment of a Federal Syariah Judicial Department. We would also urge the government to establish, at the same time, a Federal Syariah Court of Appeal. In the interim we urge all states that have not done so to appoint the Syariah Appeals Committee in their respective states. There is currently a considerable backlog of appeal cases in some states because of the State government's failure to appoint the Syariah Appeals Committee. As it stands now only the Federal Territory Appeals Committee is functioning.
4. Federal Syariah Judicial System
The present system of separate Syariah courts in different states should be replaced by a Federal Syariah Judicial system. The Syariah Judiciary must be upgraded to be at par with the Federal Civil Judicial system. The establishment of a single Federal Syariah Judiciary administering one set of Islamic Family Laws will help to eliminate the problems which are discussed in this Memorandum such as difficulty of enforcement of court orders and men running to other states to take second wives to avoid the stricter polygamy provisions in their own states.
PART 4: GENERAL RECOMMENDATIONS
1. Lack of Uniform Law
We are concerned at the lack of uniformity even of the reformed Islamic Family Law currently in force among the various States of the Federation. The divergence between States is most glaring particularly in respect of the polygamy and divorce provisions. For example, Perak, Kelantan and Kedah provide a maximum of four to five grounds for fasakh divorce whilst the other States provide 12 grounds. In the case of Kedah, wife abuse and desertion are not recognised as grounds for fasakh divorce.
The differences in the law have enabled errant husbands to circumvent the law for their own advantage as in the polygamy case of Aishah Abdul Rauf vs Wan Mohd Yusof Wan Othman. Irresponsible husbands have also been able to evade paying maintenance to their wives and children by moving to another jurisdiction. This is because an order issued by the Syariah court of one state cannot be enforced in another state.
" 76.(1) Parliament may make laws with respect to any matter enumerated in the State List, but only as follows, that is to say:
(a) ..... [not applicable]
(b) for the purpose of promoting uniformity of the laws of two or more states;"
The enactment of a single Islamic Family Law Act by the Federal Parliament for the sole purpose of promoting uniformity in the Islamic family law of all the states in the Federation clearly fails within the ambit of the above Article.
(ii) pending the above measure being introduced, reciprocal arrangements should be made for the enforcement of court orders and judgments among all the states in the Federation.
2. Prenuptial Courses
The content of prenuptial courses which are compulsory for couples intending to marry must be reviewed. We are concerned with the many reports received that lecturers at these courses promote polygamy without emphasising the responsibilities and conditions in the law to ensure justice is done. Many of them also emphasise men's rights without mentioning their responsibilities and women's responsibilities are emphasised but not their rights. They also promote the subservient role of women and negate their right to equal partnership in marriage.
(ii) a uniform curriculum and clear guidelines must be provided to the lecturers who conduct the courses.
(iii) those who conduct these courses must undergo gender sensitisation training. The training modules must be designed in consultation with women's groups and gender experts.
(iv) the curriculum should also include a segment which provides information regarding the wife's rights in the event of polygamy and divorce.
(v) the religious authorities should consult women's groups or obtain feedback from these groups when preparing the new curriculum.
3. Watchdog Body
There have been innumerable complaints regarding the negative attitude of Syariah court judges and staff as well as the staff of State Religious Affairs Departments towards women. Documentary and oral evidence show that women generally have a great deal of difficulty in obtaining justice from the Syariah courts whilst the oft-repeated complaints against the Religious Affairs Departments is that they promote the notion of women's subservience to men and show little sympathy or understanding for the plight of women in distress. There have also been complaints that some Religious Affaris Departments also actively promote polygamy in the erroneous belief that it is a man's unquestionable right, without regard to the misery and injustice (darar syarie) that this causes to the affected wives and children.
In order to address these concerns we propose that an independent watchdog body similar to the Public Complaints Bureau with branches in every state be set up for the purpose of:
(i) receiving complaints from aggrieved parties and channelling them to the appropriate authority for action;
(ii) overseeing implementation of the Islamic Family Law Act by the Syariah courts;
(iii) monitoring the courses organised by the religious authorities, particularly those covering rights under Islamic Family Law. The monitoring process should cover both the course content as well as delivery of the lectures and the attitude of the appointed lecturers on the issue of women's rights in Islam. This is to ensure that a fair and balanced picture of both men's and women's rights and responsibilities in Islam is presented.
4. Absence of Coordinated Information on the Marital Status of Muslim Males in Malaysia
There is no mechanism by which the court would be able to check on the marital status of Muslim males in which case an applicant for a marriage could very well give false information to the proposed wife and the court. There have been many cases where women found out only after the marriage that their husbands already have existing wives.
In Singapore, all Muslim males have to sign a statutory declaration that they are unmarried at the time of their marriage. A false declaration results in charges under the Statutory Declaration Act (SDA) which is criminal in nature. Criminal prosecutions are carried out under the SDA in the civil courts. Here in Malaysia even though criminal prosecution for false declaration could be made under state Syariah law, the criminal prosecutions office of the Pendakwa Raya Syatii is very weak. To assist the court in the detection of false declarations and in implementing the provisions of the Act/Enactments generally, we propose:
(i) the introduction of a computerised system of registration of Muslim marriages and divorces in every state which should be linked to a national network. This is to enable the religious authorities of any state to retrieve information regarding the applicant's martial status. In a case where applicants for marriage have lied about their marital status, the Court could arrive at the conclusion at the outset that the application ought to be dismissed. We welcome the announcement that such a system was to be established in the Federal Territories, Selangor and Negeri Sembilan by the end of 1996. We hope that this will be extended to the other States as soon as possible and eventually linked to a national network.
5. Attitudinal Change
The best law will be ineffective until and unless judicial officers are trained in appreciating the rationale of any law reform and are sensitive and aware of not just men's rights but also those of women. A major obstacle to the just and effective implementation of the Islamic family law is the gender bias on the part of the Syariah judges and other religious officials. We therefore propose that all Syariah court judges, counsellors and other professional staff undergo gender sensitive training. This training should be conducted by the lnstitut Latihan Kehakiman dan Perundangan (ILKAP) in consultation with women's groups.
(i) The Syariah courts should be adequately staffed with trained personnel. Ideally, the staffing and organisational structure of the Syariah courts should follow closely that of the civil courts. Currently, there appears to be a severe shortage of personnel such as bailiffs and process servers in the Syariah courts resulting in long delays in the processing of applications because summonses and other court documents have not been served. The Public Services Commission must give priority to requests from the Syariah courts to fill in vacancies or to employ new staff.
(ii) State religious departments should have trained staff for the specific function of advising those who cannot afford a lawyer regarding their rights under Islamic family law as well as to assist them with their applications to the court.
There is presently a lack of trained counsellors in the religious departments and the Syariah courts. Even those who bear the titie 'counsellor' appear to be unqualified for the job as we have received many complaints from women about the unsympathetic attitude of these so-called counsellors who in many cases happen to be women themselves.
We feel that the services of trained counsellors are especially critical as women who turn to them are usually in great distress. They are also usually the first contact that a woman in distress has with the religious authority. The unkind and inappropriate treatment many women have experienced with these counsellors leave a negative impression of the role and responsibilities of those in religious authority.
The training should also impart knowledge and expose the trainees to the other non- Malay cultures in Malaysia. This will enable the counsellors to respect the cultural sensitivities of and deal sensitively with Muslim converts.
8. Minimum Academic Qualifications for Syariah Judges and Lawyers
(i) With the proposed establishment of the Syariah Judicial Department, we would urge the imposition of a minimum academic qualification for newly appointed judges. This should be at least a Bachelor of Laws (LLB) degree where the applicant has majored in Syariah law.
(ii) Concomitantly, we would also propose that the government make it compulsory for all institutions of higher learning in the country which offer law courses to include the Islamic Syariah as a compulsory subject.
(iii) Lawyers appearing in Syariah courts must have a degree in Syariah law. If they already have a LLB degree they should at the same time have at least a diploma in Syariah law from a recognised institution of higher learning.
9. Appointment of Women Syariah Judges
We would also urge the appointment of women judges to the Syariah court. There is nothing in the Holy Qur'an or Hadith which prohibits women from taking up judicial appointments. In fact other Muslim countries such as Indonesia, Pakistan and Bangladesh have appointed women to serve as judges in the Syariah courts.
10. Execution of Arrest Warrants
Pusat Islam should hold dialogue sessions with the police to determine the reasons for the general reluctance or tardiness on the part of the police to execute warrants of arrest issued by Syariah courts.
11. Disciplinary Body for Syariah Lawyers
There is presently no statutory body which oversees the conduct and discipline of Syariah lawyers. The present situation is that not all Syariah lawyers are members of the Bar Council as they have not been called to the Malaysian Bar.
(ii) the establishment of a single Federal Syariah Bar. Currently Syariah lawyers have to apply separately to be admitted to the Syadah courts of different states if they wish to practise in those states.
(iii) standard requirements for the issuance and renewal of practising certificates for Syariah lawyers. This will prevent arbitrariness by those in authority when considering applications from lawyers.
12. Staffing of Biro Bantuan Guaman
We welcome the recent announcement regarding the expansion of the category of cases handled by the Biro Bantuan Guaman (BBG), the majority of whose clients are Syariah court applicants. However we feel that there should also be a corresponding increase in the professional staff of the BBG as otherwise it might not be able to handle the expected increase in the volume of cases.
13. Baitulmal FundWe urge that a fund be set up to provide financial assistance to indigent women litigants especially those who are waiting for their applications for maintenance from their husbands or ex-husbands to be disposed of in court. We would suggest that the fund be set up by the Baitulmal which collects. millions of ringgit a year through the payment of zakat.
14. Public Prosecution
The Family Law Enactments of all the States in the country contain provisions for the prosecution of those who ignore the orders of the courts. Prosecution of such cases are usually conducted by the Syariah Prosecuting Officer. It has been found that the Syariah Prosecution Department in all the States are extremely slow and ineffective. The situation is further aggravated when the alleged offender escapes to another state and thus evades prosecution as the Syariah Prosecutor of one State does not have jurisdiction in the other States.
RM1,000.00 or e note that Part 9 of the Islamic Family Law Act provides a penalty of a fine not exceeding imprisonment not exceeding six months or both such fine and imprisonment those found guilty. In most cases, under the Islamic Family Law are fined only about RM?. This 300 according to the discretion of the minimal sum acts neither as a deterrent nor a punishment to the guilty partythe main . We feel this is one of reasons why many Muslims so readily break the law and ignore syariah court orders.
For all the offences enumerated in Part 9, we propose:
(i) the penalty for all the above offences from sections 123-133, should be a minimum fine of RM1,000.00 and a maximum fine not exceeding RM5,000.00, and/or imprisonment not exceeding 12 months.
(ii) In addition, the court should also impose a mandatory imprisonment of one day.
(iii) Any government servant found guilty of committing polygamy without permission of the court under section 123 or divorces his wife outside the court and without the permission of the court under section 124 of the Act should be subject to disciplinary proceedings under the government General Orders.
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