Syariah Laws

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 Formulated and approved at the National Workshop on Reform of Islamic Family Laws and the Administration of Justice in the Syariah System in Malaysia on January 4, 1997

INTRODUCTION
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.

Yupppp.... this is so true...!! Just look at the date when they send this memo.... it was way back on 1997... It has been 10 years now...still it has not changed.... Basically undang - undang ader....but perlaksanaan sangat susah....still bias to men / husband .... kalo tak, takkan ler berlambak2 kes gantung tak bertali kat M'sia nie kan...and then..kes fasakh amik maser up to 5 -7 years to settle..

I filed for a divorce on October 2007..... Move out from the house on Jan 2008, and has been living separately till now. My case has been pending for 7 months now.... went for wakil pendamai session, and wakil pendamai gagal nak mendamaikan kedua2 belah pihak. And by right, wakil pendamai dah gagal, even hakim pon dah advise dah pun untuk jatuhkan talak....but he still refused to let me go....sangat lah ego

Alasan : " Saya masih menjalankan tanggungjwab saya sebagai seorang suami dan masih ada ruang untuk berbincang "
Which for me is totally bulls**t lah kan.... aper tanggungjawab yang dier buat pon aku taktau lah kan....nafkah mmg tak bagi.....n masih ader ruang tuk berbincang...?? nak ajak bincang sgt ler susah...he's been ignoring my phone call n sms...pastuh boleh jawab ader ruang untuk berbincang.....so bulls**t... aku pon tak paham alasan dier.... sangat sangat b****

Dier just bagi kata dua jer " I boleh ceraikan you....tapi I nak custody fayyadh "

Which for me, sangat ler zalim kan....bapak gorilla pon tau, dier pon tak der sibuk2 nak jaga anak gorilla, dier biar anak gorilla ngan mak gorilla....even binatang pon tau, binatang yang takder otak pon tau....anak should be dengan mak....

Inikan pulak manusia....lelaki yang dah berumur 31 tahun, well educated.....n Allah dah kurniakan dengan 9 akal.... 1 akal mamat nie pon tak terpikir.... So sendiri boleh pikir lah, tahap pemikiran dan kematangan mamat nie kat maner kan....

For me....now bukan pasal sayang lagi dah... Nie pasal ego...Nak tunjukkan dier berkuasa... and dier nak menang semua.... Dier mmg nak wat aku suffer... dendamlah kan...creating his own battle by making things more and more complicated...!!!

But one thing for sure....he gave me a strong reason why I should leave him.... no regrets ..!!

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