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64 WLLR 1529 FOR EDUCATIONAL USE ONLY 64 Wash. & Lee L. Rev. 1529 (Cite as: 64 Wash. & Lee L. Rev. 1529) Page 1 Washington and Lee Law Review FAll, 2007 Symposium Gender Relevant Legislative Change in Muslim and Non-Muslim Countries *1529 JUSTICE AND EQUALITY IN MUSLIM FAMILY LAWS: CHALLENGES, POSSIBILITIES, AND STRATEGIES FOR REFORM [FN1] Zainah Anwar [FNa1] Jana S. Rumminger [FNaa1] Copyright © 2007 Washington and Lee University School of Law; Zainah Anwar, Jana S. Rumminger Abstract One of
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  Washington and Lee Law ReviewFAll, 2007 SymposiumGender Relevant Legislative Change in Muslim and Non-Muslim Countries*1529 JUSTICE AND EQUALITY IN MUSLIM FAMILY LAWS: CHALLENGES, POSSIBILITIES,AND STRATEGIES FOR REFORM[FN1]Zainah Anwar[FNa1]Jana S. Rumminger[FNaa1]Copyright © 2007 Washington and Lee University School of Law; Zainah Anwar,Jana S. RummingerAbstractOne of the subtle but most pervasive areas of  discrimination against women in the Muslim world today isthe inequality that occurs within the context of the family. Throughout Muslim countries and contexts,Muslim women are speaking out about such discrimination and are fighting for reform of  family laws topromote justice and equality within the family. This Article outlines key discriminatory provisions withinMalaysia's Islamic Family Law (Federal Territories) Act of 1984 and the efforts being made by Muslimwomen in Malaysia to advocate for comprehensive reform of Malaysian Muslim family laws . This effort in-cludes developing an understanding of why and how reform of Muslim family laws is possible using newprogressive scholarship on justice, equality, and the construction of gender in Islam; coping with challengesto law reform that arise generally and within the Muslim context; and exploring strategies that have beenused by women's groups in other Muslim countries to push for reform. Based on these lessons, activists inMalaysia have developed a draft model family law grounded in the Islamic principles of equality and justice *1530 and have prepared a guide to the proposed provisions, with justifications for reform based on aholistic framework that emphasizes four elements: religious principles, domestic laws and policies, interna-tional human rights law, and sociological trends and data that present the lived realities of women in Malay-sian families. In addition, women's organizations have commenced a national public education campaign tobuild support across a broad constituency of women's rights and human rights groups and at the grassrootslevel to build and sustain the momentum for reform.I. IntroductionWith the increasing visibility of Islam in the international arena, a great deal of attention has been devoted tothe rights of women within Muslim contexts. The American and European media are flooded with stories of women who are denied the right to vote or the ability to drive, forced to wear the hijab,[FN2]or severelyand cruelly punished for adultery.[FN3]In fact, one of the most contested sites of discrimination against women is far more subtle and pervasive: the injustice and inequality that occurs within the context of thefamily, relating to such issues as age of marriage, capacity to enter marriage, finances, divorce, custody, andguardianship. *1531 Discrimination and injustice within the family is critically important because of thecentrality of the family to women's lives and the ways in which male control over wives, mothers, sisters,and daughters can trickle over into all aspects of society.[FN4]Throughout Muslim countries and contexts, Muslim women are speaking out about injustices and discrimin-ation, and they are fighting specifically for equality and justice within the family. This Article outlines theefforts being made by Muslim women in Malaysia to advocate for comprehensive reform of the currentMalaysian Muslim family laws. This effort includes developing an understanding of why and how reform of 64 WLLR 1529 FOR EDUCATIONAL USE ONLY Page 164 Wash. & Lee L. Rev. 1529 (Cite as: 64 Wash. & Lee L. Rev. 1529) © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.  Muslim family laws[FN5]is possible,[FN6]exploring strategies used by women's groups in other countries to push for reform,[FN7]and outlining justifications for reform based on a holistic framework that emphas- izes four elements: religious principles, domestic laws and policies, international human rights law, and so-ciological trends and data that present the lived realities of women.[FN8] *1532 This Article is divided into six parts. Following this introduction, Part II provides an overview of Muslim family laws in Malaysia and an example of discriminatory provisions in the codified law. Part IIIpresents key challenges to the call for reform by women's rights groups in Malaysia and in the Muslim worldmore broadly. Part IV discusses critical support for reform of Muslim family laws that is increasingly beingprovided by scholars and activists, and Part V outlines some strategies that women's groups in Malaysia, fol-lowing examples from other parts of the world, are using to advocate for reform. Part VI concludes the pieceby arguing that reform is necessary and possible, and Muslim women's groups can and are leading the wayin the push for reform.II. Discrimination Against Women in Malaysia's Muslim Family LawsMalaysia's population is multi-religious, with recent estimates indicating that 60.4% of the population isMuslim, 19.2% Buddhist, 9.1% Christian, 6.3% Hindu, 2.6% Confucian, Tao, and other religions customaryin China, and 2.4% other or no religion.[FN9]Malaysia has a dual court system, with shari'ah-and fiqh- based[FN10]laws that apply only to Muslims and include matters specified in the State List of the federal Constitution such as matrimonial law, charitable endowments, bequests, inheritance, and offenses that arenot governed by federal law (these include matrimonial offenses, khalwat (close proximity), and offensesagainst the precepts of Islam).[FN11]The power to legislate these matters lies with each state legislature and state sultan, with the federal Parliament legislating such matters for the federal territories of Kuala Lum-pur, *1533 Labuan, and Putrajaya.[FN12]Because there are thirteen states and one federal jurisdiction, there are fourteen different sets of Muslim laws in Malaysia.[FN13]Since the early 1980s, there have been various attempts to codify and unify the Muslim family laws acrossthe states. The Islamic Family Law (Federal Territories) Act of 1984 (Act 303) was to serve as a model foreach state to follow and was considered internationally to be among the most progressive codified Muslimfamily laws in terms of rights and protections for women.[FN14]Since 1984, however, there have been a series of amendments to this Act[FN15]that have effectively rescinded many of the positive provisions for womenset forth in the srcinal codification.[FN16]The current Islamic Family Law Act contains a large number of provisions that explicitly or implicitly dis-criminate against Muslim women.[FN17]These include: *1534 . The minimum age of marriage is lower for women than men.[FN18]. A woman, regardless of her age, can only marry with her guardian's consent, whereas a man does notneed to get the consent of a guardian.[FN19]. A Muslim man can marry a non-Muslim woman but a Muslim woman cannot marry a non-Muslim man.[FN20]. A man may marry multiple wives (up to four), but a woman can only have a monogamous marriage.[FN21]. A woman is supposed to obey her husband. Her failure to comply with the lawful wishes of her hus-band constitutes nusyuz and means she can lose her right to maintenance.[FN22] *1535 . A man can divorce his wife at will, outside of the court system,[FN23]but a woman must go to court and obtain a judicial divorce on one of a number of very specific grounds that require extensive evid-ence.[FN24]. Custody and guardianship of children are determined separately. The mother has a right to physical cus-64 WLLR 1529 FOR EDUCATIONAL USE ONLY Page 264 Wash. & Lee L. Rev. 1529 (Cite as: 64 Wash. & Lee L. Rev. 1529) © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.  tody of her children only up to the age seven for a son or nine for a daughter, after which custody devolvesupon the father.[FN25]The law specifies that a woman (not a man) can lose custody on several grounds, including immorality. [FN26]A woman is not entitled to guardianship of her children: The law states that the father shall be the first and primary natural guardian of the person and property of his minor child andupon his death guardianship devolves to one of several male Muslims.[FN27]This means that even when the woman has custody of the children, the father as the lawful guardian maintains control over matterswhere the consent of the guardian is required (e.g., permission to obtain a passport, register or changeschools, or undergo surgery; decisions regarding ownership; and disposal of the children's property).[FN28]There is no provision in the existing law for the father's loss of guardianship in the case of irresponsibilityregarding the children's maintenance. *1536 Similar discriminatory provisions in personal laws are common in Muslim countries throughout theworld. In response to such discriminatory provisions, women's groups in many Muslim countries are callingfor reform of Muslim family laws .[FN29]In Malaysia, Sisters in Islam, a nongovernmental organizationcomprised of Muslim women committed to promoting the rights of women within the framework of  Islam, has submitted multiple memoranda to the government and staged numerous advocacy campaigns since 1996on Muslim family law reform.[FN30]Sisters in Islam is continually revising and updating its law reformefforts to incorporate new and progressive scholarship on Islamic legal theory, Muslim laws, and Muslimsociety and to capture and build on successful strategies from other countries.III. Challenges to Law Reform as a Means of Change Women's groups in Malaysia and around the world face a number of challenges in their struggles to pushfor the reform of discriminatory family laws . Some of these struggles are manifested in structural discrim-ination within the laws themselves, while others relate to shifting socio-political elements in the Muslimworld and beyond. In the post-colonial era of the twentieth century, a number of Muslim countries likeMalaysia moved toward the codification of Muslim personal law through statutory enactment.[FN31]Such codification, however, was generally based on the *1537 classical fiqh conception of the marriage contractdeveloped by Muslim jurists in the ninth and tenth centuries in a socio-historical context in which gender in-equality and the subjugation of women were taken for granted.[FN32]Therefore, modern Muslim family laws are grounded in assumptions that are centuries old and have little bearing on today's realities. For dec-ades now, Muslim personal status codes have been amended to mitigate some of the grievances women haveagainst these provisions. For example, in various Muslim countries, polygamy has been increasingly regu-lated by the courts,[FN33]types of divorce or grounds for divorce initiated by women have been expanded,[FN34]statutes have been enacted or amended to allow additional conditions to be written into the marriagecontract to protect women's interests,[FN35]and the concept of best interests of the child has been intro- duced to enable a woman to retain custody even though she has remarried or her children have reached theage limit for maternal custody.[FN36]But the reform of Muslim family laws in different countries has been primarily ad hoc, following the Islamicselection (takhayyur) and combination (talfiq) methods to reform individual provisions[FN37]instead of  *1538 addressing the medieval assumptions about gender relations that underpin the modern laws. In coun-tries such as Morocco,[FN38]Algeria,[FN39]Tunisia,[FN40]and Turkey,[FN41]law reform in recent years has begun to address these underlying assumptions and biases. In other countries, however, lawmakersare considering replacing secular colonial codes with codified Muslim laws, which threatens to entrench theinequality of women because these laws will be based on patriarchal classical interpretations of the shari'ah.[FN42]In a few other countries, such as Iran and Malaysia, women's rights within the family have actuallyregressed because of the rise of political Islam and reinstatement of classical fiqh rules.[FN43]Law reform can be a challenging and frustrating process regardless of the issue, and many advocates believethat it is often easier to stop a law from being adopted than to make changes to laws once they are in place.64 WLLR 1529 FOR EDUCATIONAL USE ONLY Page 364 Wash. & Lee L. Rev. 1529 (Cite as: 64 Wash. & Lee L. Rev. 1529) © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.  Within the context of Muslim family law, efforts at reform pose particular challenges because the push for alegal regime that recognizes equality between men and women is often regarded as un-Islamic. Even when *1539 groups like Sisters in Islam engage with the religious texts and locate arguments for change within Is-lamic legal theory and practice (alongside a framework of human rights and constitutional principles) toprove that the changes demanded are not against the teachings of Islam, they are still denounced and oftenvilified as speaking against Islam, Islamic law, and God's teachings.[FN44]Some key challenges to law reform within the Muslim context include:. There is a belief in many mainstream Muslim societies that the Muslim family law is God's law and is,therefore, infallible and unchangeable, rendering any effort at reform to be regarded as un-Islamic.. Many people believe that men and women do not have equal rights in Islam generally, such that de-mands for equal age of marriage and equal rights to divorce, guardianship and inheritance are portrayed asagainst God's law.. Individuals and communities often express a traditional belief that only the ulama (Muslim religiousscholars or jurists) have the authority to speak on Islam. Since ulama are not at the forefront of reform, civilsociety groups and lay intellectuals assume leadership in reform movements, but their credentials and au-thority to engage with Islam publicly are questioned and undermined. Thus, women's groups in Muslim soci-eties face difficulties advocating for reform when they do not have the support of government or those per-ceived to have religious authority.. Many Muslims are afraid to speak out on Islamic issues in public, especially if their views are contraryto orthodoxy. They fear controversy or being labeled as anti-Islam and accused of questioning the word of God by the extremists. This fear extends *1540 to progressive scholars who have the knowledge and credib-ility to speak out, but choose to remain silent for fear of jeopardizing their jobs and livelihoods, invokingcommunity hostility, and/or facing threats to their safety.. The conflict between constitutional guarantees of equality and nondiscrimination and constitutional pro-visions that recognize religious and customary laws poses a special challenge in many countries where suchlaws continue to discriminate against women in the name of religion and recognition of cultural diversity.[FN45]Groups like Sisters in Islam believe that there is no actual conflict between principles of equalityand nondiscrimination and the teachings of  Islam, and that such interpretations must be challenged.IV. Support for Reform from Scholarship and ActivismA number of developments in the past fifteen to twenty years have provided support for women's groupsthat are pushing for reform of Muslim laws. These developments include new progressive scholarship thatsupports the concept of equality and justice within Islam, studies on the construction of gender and familyrelationships in Islamic legal theory, and successful efforts at reform of Muslim laws in various countries.First, a range of new progressive scholarship recognizing equality and justice within Islam has enabled wo-men's groups to explore the possibilities for the reform of  family laws within a faith-based framework andto challenge the perpetuation of gender discrimination in the name of religion by traditionalist and funda-mentalist ulama and activists.[FN46] *1541 Themes in the new scholarship include the recognition of equality between men and women in Islam, the imperative of ijtihad (independent reasoning to arrive at alegal principle) in modern times, the dynamics between what is universal for all times and what is particularto seventh century Arabia, the socio-historical context of revelation, and the need to differentiate betweenwhat is revelation and what is human understanding of the word of God.[FN47]This new scholarship has also brought to public attention the gender discriminatory assumptions and frameworks that informed thework of mainstream classical Muslim jurists and the ways in which other early scholars and voices weremarginalized or silenced because of their progressive views on women, rights, and freedom.[FN48]The conceptual frameworks developed within and through this research have enabled more and more Muslimwomen activists to realize the validity and possibility of working within the Islamic framework, and thatthey can indeed find liberation from within Islam.64 WLLR 1529 FOR EDUCATIONAL USE ONLY Page 464 Wash. & Lee L. Rev. 1529 (Cite as: 64 Wash. & Lee L. Rev. 1529) © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.
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