GENDER ISSUES: Islamisation and its Impact on Democractic Governance and Women’s Rights in Islam:  A

I speak from the standpoint of an activist, of someone who works on the ground, challenging political Islam, traditional Islam in the way it is interpreted and codified that very often discriminates against women and infringe the fundamental liberties of Malaysian citizens as upheld by the Federal Constitution. I speak also from the perspective of a feminist and a believer, and of someone who is determined not to be forced to live in exile because she cannot lead the life she chooses and the Islam she believes in in her own country.

September 11 has been positive in many ways for Malaysia and the struggle I am involved in. One important impact has been the expansion of the public space for debate, for discussion, for differences of opinion on Islam and Islamic issues. There is greater awareness, not just only among Muslims, but also among non-Muslims as well who make up about 40 percent of the population, who are claiming their right as citizens of a multi-racial country to take part in defining the kind of Islam that should govern the lives of citizens of Malaysia. There is greater awareness that if Islam is to be used as a source of law and public policy to govern the public and private lives of citizens of Malaysia, then the question of WHO decides what is Islamic and what is not is of paramount importance.

What are the implications to democratic governance, to multi-racial Malaysia, if only a small group of people, the ulama, as traditionally believed, have the right to interpret the Qur’an, and codify the text in a manner that very often isolates the text from the socio -historical context of its revelation, isolates classical juristic opinion especially on women’s issues, from the socio-historical context of the lives and society of the founding jurists of Islam, and further isolates our textual heritage from the context of contemporary society, the world that we live in today.

Increasingly in Malaysia today, and in many other Muslim countries, women’s groups, human rights groups, NGOs, political parties, the media, and concerned individuals are beginning to speak up to engage publicly in a debate on these issues. What is the role of religion in politics? Is Islam compatible with democracy? Who has the right to interpret Islam and codify Islamic teachings into laws and public policies? How do we deal with the conflict between constitutional provisions of fundamental liberties and equality with religious laws and policies that violate these provisions? Should the state legislate on morality? Is it the duty of the state, in order to bring about a moral society, to turn all sins into crimes against the state? Can there be one truth and one final interpretation of Islam that must govern the lives of every Muslim citizen of the country? Can the massive coercive powers of a modern nation-state be used to impose that one truth on all citizens? How do we deal with the new universal morality of democracy, of human rights, of women’s rights, and where is the place of Islam in this dominant ethical paradigm of the modern world?

The reality and the implications of Islamic governance in a multi-ethnic modernizing country like Malaysia are just beginning to sink in. As the contestation for power between UMNO and PAS escalates into a holier than thou battle for the support of the Muslim votebank, issues such as the Islamic state, the hudud law, discrimination against women, freedom of expression, freedom of religion, enter the public sphere like never before for public debate.

It is useful to take the example of the controversy over the hudud law to illustrate some of these issues of concern that have been raised. In May last year (2002), the Terengganu state government which is under the control of the Islamic party of PAS introduced the hudud law, the Shariah criminal law that prescribes punishment such as the amputation of limbs, and stoning to death. The debate that opened up represented a microcosm of concerns in law-making and governing in the name of Islam.

My group, Sisters in Islam, launched a wide public debate on the hudud law and the issues at stake by issuing a letter to the editor to the major newspapers in the country which raised several areas of concern in the provisions of the Terengganu hudud law.

One major area of concern was the gross discrimination against women. There is a misogynistic bent in so many Islamic laws that form a part of the Islamic juristic heritage. The problem is the religious authorities in contemporary times are not willing to exercise their powers of ijtihad to reform these laws to deal with the changing realities of today’s world where the demand for equality and justice can no longer be ignored. For example, what sparked off the outcry over the hudud law of Terengganu was the provision that if a woman reports she has been raped and cannot prove it, she will be charged for qazaf, making false accusation, a crime under the hudud law. If found guilty, the woman will be lashed 80 times. It will not be difficult for the woman to be found guilty because in order to prove rape under the hudud law, you need to produce four pious Muslim male eyewitnesses who actually saw the act of penetration! In reality, this is of course impossible.

Other provisions in the hudud law also discriminate against women. Women cannot be witnesses which means half the population of Malaysia will be disqualified as witnesses. Neither can non-Muslims be witnesses, which means, in effect, almost three-quarters of the population of Malaysia would be disqualified. A single woman who is pregnant is assumed to have committed zina (illicit sex). In other jurisdictions, this has led to rape victims being charged for zina. For many Malaysians, for many Muslims today, to introduce such provisions in the law in the 21st century is unacceptable.

The second issue is the nature of punishment. Again this issue must be seen in its proper socio-historical context. The hudud law provides for chopping of hands, crucifixion, stoning to death, lashings. These were punishments deemed acceptable in the first centuries of Islam and even in medieval Europe. Within the context of the modern world today, such punishments are no longer acceptable. In many societies, and by international human rights standards, they constitute torture or cruel, degrading and inhumane treatment which no human being should be subjected to.

Moreover, stoning to death an adulterer is not even a punishment prescribed by the Qur’an and yet the proponents of this law chose to keep this pre-Islamic practice as the codified hudud punishment in the 21st century. Even if these punishments are in the Qur’an, shouldn’t we look into the socio-historical context of the time when these punishments were deemed ordinary and acceptable by the society of 7th century Arabia? Could the course of justice, of deterrence be better served through other forms of punishment in the 21st century? In the end the objective of the teachings of Islam, the objective of Shariah law, is to ensure that justice is done. In the context of the 21st century can the cause of the religion, of law and justice be served in different ways?

The third issue is freedom of religion. Under the hudud law a person who leaves Islam will be sentenced to death. What is its implication to multi-racial Malaysia where non-Muslims have to convert to Islam in order to marry a Malay-Muslim? Marriages break down. The divorce rate among Muslims is far higher than the divorce rate among non-Muslims. What will happen to a Chinese woman who wants to go back to her original religion, to her family and community support system upon the breakdown of her marriage to a Muslim man? Is she going to be sentenced to death? How does this punishment serve the best interest of her children, her family, her community and society at large? How does it serve the cause of Islam? This woman’s right to life cannot be swept aside in the name of preserving the sanctity of religion, defined in an oppressive manner.

The fourth problem area is the tendency to codify the most conservative opinion in Islam into law. For example, there are basically three traditional juristic opinions on the punishment for apostasy. First is the orthodox opinion that death penalty should be imposed on those who leave Islam. Second is an opinion that prescribes the death penalty only if apostasy is accompanied by rebellion against the community and the legitimate leadership-in other words, treason. The third view holds that even though apostasy is a great sin it is not a capital offence in Islam. Therefore a personal change of faith merits no punishment. Yet in its attempt to introduce the hudud law in the 21st century, the Islamic party in power in Terengganu chose the most extremist juristic opinion to codify into law. It is a well-known fact that the Qur’an is explicit in its recognition of freedom of religion and there exists as well within the Islamic juristic heritage a position that supports freedom of religion. This is further enhanced also by the official position of Al Azhar University under Sheikh Tantawi who believes that there should be no punishment for a personal change of faith.

This tendency to codify the most conservative opinion is especially so in the area of women’s rights. For example, under the hudud law, the provision that women cannot be witnesses is only a juristic opinion with no explicit support in the Qur’an or the traditions of the Prophet, for that matter. Pregnancy as evidence of zina, again is a minority opinion of one school, the Maliki School of Law. The majority opinion of the three other schools in Sunni law: Hanbali, Shafi’i and Hanafi, do not admit circumstantial evidence for a hudud offence, and do not admit pregnancy as evidence of zina. Yet, in legislating, the Islamic party, PAS, chose a minority opinion, even when the minority opinion does not belong to the Shafi’i school, which is the dominant school in Malaysia.

The challenge and the reality we are facing today is the seeming unwillingness or inability of the ulama that dominate the religious authority and many Islamist activists of today to see Islamic laws from a historical perspective as rules that were socially constructed to deal with the socio- economic and political context of the times. Given a different world, a different time, a different context, these laws have to change to ensure that Islam’s eternal principle of justice is served. More than ever, there is a need for Muslims to differentiate between what is divine and what is human—the source of the law is divine, but the human effort in understanding God’s message, the human effort in codifying God’s message into positive law is not infallible and divine. These laws can be changed, they can be criticized, they can be challenged, and they can be refined and re-defined.

Unfortunately, in the traditional Islamic education most of our ulama have gone through, the belief in taqlid, in blind imitation is very strong. The belief that the doors of ijtihad are closed is very strong. This rationale is based on the belief that the great scholars of the classical period of Islam who lived closer to the time of the Prophet were unsurpassed in their knowledge and interpretive skills. But to adopt such an attitude is totally untenable in today’s world when we face new and different challenges: the issue of human rights, of democracy, of women’s rights, the challenge of modernity, the challenge of change. How do find solutions from within our faith if we do not exert in ijtihad and produce new knowledge and new understandings of Islam in the face of new problems?

For this to happen, the public space to debate on Islam and Islamic issues has to open up. Unfortunately in many Muslim societies today, this public space does not exist, not just to talk about Islam but to talk on other issues that are deemed sensitive by the power elites, such as democracy, human rights, politics, freedom, fundamental liberties. Someone once said that bad secularism leads to bad religion. The problem that we face today in the Muslim world is that many Muslim governments, Muslim leaders govern in less than exemplary ways, lead less than exemplary lives. Many Muslim leaders do not have the moral authority nor the credibility to talk about an Islam that represents justice, peace and tolerance when they themselves lead their lives and govern other people’s lives in ways that are so unjust, so intolerant, and so hostile and violent. Many Muslim countries are led by autocratic rulers and monarchs where freedom of expression, freedom of assembly, freedom of association do not exist or are very restricted. Our traditional upbringing, our culture, and our political system do not encourage us to engage freely in debate on issues. Of course then, when political Islam emerges as an alternative to challenge that autocratic state, it is an Islam led by those whose mindset and cultural framework are just as closed and limited.

I feel very strongly that the role played by civil society groups, such as women’s rights and human rights activists will be key in bringing about change and the terms of public engagement on Islam in many Muslim societies. In Malaysia, Sisters in Islam has been at the forefront in creating and expanding the space for public discussion on laws and policies made in the name of religion that discriminate against women and infringe constitutional provisions on fundamental liberties and equality.

We write letters to the editor, issue press statements, hold press conferences, organise press briefings, public lectures, study sessions, and training on women’s rights in Islam to generate a more informed public debate and build an ever expanding public constituency that will push for the development of an Islam that upholds the principles of justice, equality, freedom and dignity within a democratic nation-state framework. It is our hope that more and more Malaysians will engage with the religion by building their knowledge, conviction and courage to speak out on Islam and to put pressure on the Government, Islamic parties and movements who use religion as a political ideology to serve partisan party interests and in ways that oppress women and infringe our fundamental liberties upheld by the Constitution.

We work strategically with the media to give us the space to articulate our views and concerns, and we work closely with women’s groups and human rights groups to show that we are not an isolated voice in the struggle for rights in Islam. The resultant public discussion and ownership of Islamic issues is important as it pushes the authorities and the Islamic party to deal with the challenges and questions we pose and to find solutions to the problems highlighted.

In the end, those who demand the establishment of an Islamic state and imposition of Islamic law as conceptualised traditionally, must ask themselves: why should Malaysians want an Islamic state which assert different rights for Muslim men, Muslim women and non-Muslims and minorities, rather than equal rights for all? Why would those whose equal status and rights are recognised by a democratic system support the creation of such a discriminatory Islamic state? If an Islamic state means an authoritarian theocratic political system committed to enforcing gender-biased doctrinal and legal rulings, and silencing or even eliminating those who challenge its authority and its interpretation of Islam, then why would those whose fundamental liberties are protected by a democratic state support such an Islamic state?

Just as the failure of modern Muslim states today is seen as the failure of western secular institutions and laws, the failure of a government that rules in the name of Islam and claims its legitimacy from God can only be seen, in the end, as the failure of Islam. And yet, Islam’s eternal commitment to justice, equality, freedom and dignity are universal principles that remain valid for all times. For me, it is these ethical principles that should form the framework within which we seek to reconstruct society. To successfully do this, however, Muslims need the intellectual vigour, moral courage and political will to open the doors of ijtihad and publicly engage in defining and redefining our understanding and our knowledge of Islam in our search for answers to deal with the challenges of our ever changing times and circumstances. This is not heretical, but an imperative if religion is to remain relevant to our lives today.

Zainah Anwar is Executive Director, Sisters in Islam, Kuala Lumpur, Malaysia.  Visit their excellent site at www.sistersinislam@pd.jaring.my


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