Monday March 4, 2013
Fighting for fairness
Stories by SANDRA LOW
Two decades ago, Malaysian Muslim women who were treated unjustly or discriminated against had no one to turn to. Today, they have found a voice in Sisters in Islam.
AFTER *Ana’s husband abandoned the family for three years, she initiated a divorce.
Ana, a Muslim and a mother of two, had been married for 28 years.
For the next two and a half years, Ana was in and out of court. Her husband refused to grant her a divorce.
Meanwhile, Ana’s husband transferred a substantial sum of his marital assets to a third party.
Finally, the date of the fasakh (order for the dissolution of marriage) hearing was set.
On the said date, the husband showed up in court and told Ana that he would pronounce the talaq (declaration of divorce) on condition that she dropped her application for maintenance and matrimonial assets, among others. Ana’s husband had a net worth of more than RM100mil.
Ana’s lawyer insisted that she accept the talaq because it would be easier; going through fasakh would require a prolonged trial. She refused because she wanted the divorce on her terms. Her lawyer then discharged himself in court. Unknown to Ana, her lawyer and her husband’s lawyer were trying to settle out of court behind her back.
She was left without legal representation in the middle of the hearing and appealed to the judge for a postponement as she had to look for a new lawyer. The judge gave her 24 hours to do so because “the case had been pending for too long.” As her lawyer only passed her the case file the next morning right before the hearing, Ana could not find anyone to take up her case on such short notice.
Ana’s case ended up being dismissed by the judge. All she wanted was a divorce and what is rightfully hers and her children’s.
Sadly, Ana’s case is not uncommon.
It was earlier reported in The Star that there had been a steady increase in the number of divorces recorded in Malaysia over a 10-year period, with over 33,000 couples splitting up in 2010.
Figures from the Malaysian Quality of Life 2011 report showed that 0.22% of marriages among Malaysians aged 18 to 50, ended in divorce in 2010, almost double the 0.13% recorded in 2000.
Eighty per cent of the divorces involved Muslim couples.
According to Sisters in Islam (SIS), the highest number of calls – through their Telenisa helpline – came from Muslim women who enquired about issues pertaining to divorce.
“Since 2003, we have received more than 6,000 calls, mostly from women. Through our data collected over 10 years, the majority of the calls relates to issues of marriage and divorce, followed by wife and child maintenance,” says Suriani Kempe, 32, programme manager for SIS.
Other issues include polygamy, children’s status regarding illegitimacy and adoption, violence against women, court procedures, property matters, apostasy and syariah criminal offences.
In conjunction with International Women’s Day on March 8, Kempe says she and her team at SIS would like women to know that “Your life matters. Asking for justice is not asking for a favour or handout. You have a right to it. Don’t hesitate to demand for what is rightfully yours.”
It is out of this simple quest for justice that SIS, a non-governmental and non-profit organisation, was born.
In 1988, a group of Muslim women lawyers, activists, academics and journalists came together and held their first meeting in the house shared by Zainah Anwar, a former journalist and senior analyst, and Noor Farida Ariffin, then president of the Association of Women Lawyers and legal advisor to the Economic Planning Unit in the Prime Minister’s Department.
They looked into the problems Muslim women had with the syariah courts, and began studying the Quran for a better understanding of what it says about women, justice and equality.
Formally registered in 1993, SIS focuses on challenging laws and policies made in the name of Islam, but which discriminates against women.
Their mission is to promote the principles of gender equality, justice, freedom and dignity in Islam, and empower women to be advocates of change.
Today, SIS’s area of work has expanded to encompass larger issues like democracy and human rights.
Kempe says the group got together in 1988 because they came across too many Muslim women who were dealing with unfairness.
“When these women proposed remedies for the injustice they faced, they kept coming up against roadblocks and dead ends. They kept getting excuses that the law was made in God’s name, so there was a lot of room for doubts,” she says.
“We grow up learning that Islam is a kind and compassionate religion and enforces justice. To have people telling women faced with injustice, that they cannot find a solution because it is God’s law, contradicts the message of Islam,” says Kempe who manages the Advocacy, Legal Services and Public Education unit at SIS.
Aside from divorce cases, Kempe cited the case of *Siti, a Muslim woman who was living in fear after being repeatedly abused and harassed by her husband.
Siti had married a Muslim convert who was a martial arts exponent. Some years into the marriage, Siti was doing well career-wise. After her husband lost his job, he became abusive – first verbally then physically.
Siti made more than 40 police reports on domestic violence, after she and her children were physically assaulted, but the police did not take action because they did not want to interfere in domestic disputes.
It was only after Siti’s brother was seriously hurt when he came to her rescue, that the police intervened and she managed to get an interim protection order. Siti herself was badly injured in that latest assault.
Despite the IPO, Siti’s husband continued to stalk and hurt her on many more occasions.
“Another case involved a desperate father calling us for advice. He was worried that his daughter was displaying signs of extremism; she believed that even watching television was against Islamic teachings,” says Kempe.
“Child maintenance is a huge issue. There are lots of ex-husbands who do not pay maintenance and there are often delays in court. The problem is, the amount is decided in court. If the ex-husband does not pay up, the woman has to see a judge to get an enforcement order. When it comes to polygamy, the impact is greater as it involves the other wives and all the children” she explains.
Compared to civil law where women have equal rights to parental responsibility and guardianship, and right to divorce, syariah law works differently.
“For example, when a Muslim man abandons his family or goes missing, the wife does not have the right to sign a form to allow a hospital to proceed with a surgical procedure for her child,” she explains.
On the matter of divorce, SIS proposes that divorce should only take place in court, and steps be taken to end the delays and injustices towards women during divorce proceedings in the syariah courts.
When a divorce takes place in court, it ensures the women and children are guaranteed their rights under the law, which includes the woman’s right to mut’ah (consolatory gift to women divorced without just cause), division of matrimonial assets and the children’s right to maintenance.
“Currently, Muslim men can divorce their wives unilaterally, in or outside of court. Hence, there are many cases of men pronouncing talaq via sms, notes, voicemail, etc, and incidences of men divorcing their wives without just cause,” Kempe says.
According to Kempe, amendments to the Islamic Family Law in 1994 created a loophole that allows the court to approve the pronouncement of talaq (without the permission of the court), if it is satisfied that the talaq is valid according to Hukum Syarak (Laws of Islam under the Mazhab Shafie or one of the Mazhab Maliki, Hanafi or Hanbali). While the husband may be liable to a fine of RM1,000 or six months’ jail, the divorce can be registered and validated.
“This led to a proliferation of cases of men divorcing their wives, sometimes even without the knowledge of the wife,” she says.
Kempe added that within two years of the amendment, research conducted by the Women’s Centre for Change in Penang found that the number of men who pronounced talaq outside the court was three times more than those who applied for divorce through the courts.
SIS believes that the state religious authorities should revert to the original provision in the Islamic Family Law Act and Enactments 1984, which requires all applications for divorce to go through the court. Thus, all pronouncements of divorce outside the court, including by sms, would be invalid.
In several Muslim countries, including Indonesia, Iran, Morocco, Algeria and Tunisia, all divorces must go through the court.
“We acknowledge that the Islamic Family Law in Malaysia enables women to get a divorce by ta’liq (divorce for breach of condition in the marriage contract), and also provides for 12 different grounds to enable women to get a divorce by fasakh (order for dissolution of marriage). However, there are many shortcomings in the implementation of the law which contribute to the delays and injustice Muslim women face,” Kempe elaborates.
SIS is also pushing for institutional changes in matters such as lawyers’ behaviours and gender sensitisation for judges, as in the case of Ana’s divorce where she received unjust treatment.
Kempe explains that civil lawyers have a cap on legal fees for opening a file to handle divorce cases, but not syariah lawyers, due to a lack of regulations.
Some syariah lawyers do not put the items (divorce, wife and child maintenance, custody, matrimonial assets, etc) in one file. A file is opened for every item, and a fee is charged accordingly.
SIS has come across cases where women have paid as much as RM73,000 to their lawyers for handling their divorce case.
“There are gaps in the system that allow women to be taken advantage of,” Kempe points out.
Apart from providing free legal services, mobile legal clinics, court watch and workshops, SIS has a Secretariat for Musawah which is a global movement for equality and justice in the family. This arm does global advocacy, and SIS connects with other women’s groups around the world.
Through its network of lawyers – who do pro-bono work or charge a minimal fee – SIS also works with AWAM (All Women’s Action Society which runs the Telenita line) and WAO (Women’s Aid Organisation) to provide support for women who seek other forms of assistance.
“We look into areas where women encounter problems, and we make recommendations for law reforms. There are areas where amendments to the law are regressive. Instead of being protective, they work against women,” Kempe says.
So what do the team at SIS wish for women on International Women’s Day? Their unanimously reply: “The freedom to enjoy our right to choose what we wear, what we listen to, what we celebrate, where we go, and the strength and courage to challenge societal norms that limit a woman’s full potential and contribution to the nation.”
■ Names have been changed to protect the privacy of the individuals.