Uncertain Role for Female Shariah Judges in Malaysia

30 July 2010 in Asia, Equality, Faith, Gender Mainstreaming, Legal Police, Women's Group

Women’s groups have applauded the recent appointment of two female judges to Islamic courts in Malaysia, but its significance is not yet clear: The new judges will have to wait a month before finding out whether they will be prevented from hearing certain cases.

A committee of 20 senior judges is scheduled to begin considering whether Shariah guidelines would bar women from handling certain legal matters, like divorce. The judges are expected to conclude their deliberations in a month, said Mohammad Yusop Che Teh, a Shariah Court of Appeal judge.

“The Shariah principles will be the guiding principles in determining the jurisdictional issues,” he said Wednesday at a news conference.

Women’s rights advocates have expressed hope that the appointment of Rafidah Abdul Razak and Surayah Ramlee may help address concerns that women are treated unfairly by the Shariah courts.

Under Malaysia’s two-tier judicial system, secular courts handle most criminal and many civil cases, while Shariah courts deal with family and morality cases involving Muslims.

Women’s organizations say they receive many complaints from women about discrimination in the Shariah courts. Among the most common objections, said Norhayati Kaprawi, a Muslim women’s activist, are that it is more difficult for women to initiate divorce proceedings and to secure alimony from their former husbands.

The appointments came five years after the religious authorities in this Muslim-majority country issued a fatwa, or religious ruling, declaring that women could be appointed Shariah judges.

Although the women were appointed in May, Prime Minister Najib Razak made the announcement only this month. Ms. Rafidah, 39, will work in the Kuala Lumpur Shariah court, while Ms. Surayah, 31, has been appointed to the federal territory of Putrajaya.

“It is our hope that these appointments will enhance justice in all cases brought before the court, including those involving families and women’s rights,” Mr. Najib said in a statement issued last week.

Ms. Surayah and Ms. Rafidah will serve in the Subordinate Court, the lowest level of the Shariah court system, which also includes the High Court and the Court of Appeal.

Ms. Surayah was previously an assistant to the senior director in the department of Shariah training division, while Ms. Rafidah was a Shariah court research officer.

Speaking at the news conference Wednesday, the two new judges pledged to apply the law according to Shariah principles. Ms. Rafidah said she did not see any distinction between herself and her male counterparts.

When asked how she felt about the possibility that they may be prevented from hearing certain cases, Ms. Rafidah said she would leave it to “the wisdom” of the committee deciding the matter.

Women have long served as judges in secular Malaysian courts, and women represent about half of the 400 lawyers who have registered with the Shariah Lawyers Association, a voluntary membership group.

But before the 2005 fatwa, religious scholars in the country had debated whether women could serve as Shariah judges under Islam.

Ms. Norhayati, the women’s rights advocate, said some scholars had expressed doubt as to whether women had the mental and emotional capacity to serve as judges, and some wondered whether they would side with female complainants.

She said it would be “an insult” to Muslim women if they were prevented from hearing certain cases, because Muslim women had already proved themselves to be capable judges in the secular courts.

Sa’adiah Din, a Shariah lawyer who specializes in family law, said that since the fatwa was issued, female lawyers had repeatedly asked the judicial authorities when a female judge would be appointed. “We’ve been waiting for this,” she said.

Zaleha Kamaruddin, deputy director general of the Institute of Islamic Understanding, a research institution in Kuala Lumpur, said that the women’s appointments had been widely welcomed and that other Malaysian states had shown interest in appointing women as Shariah judges. “These appointments are significant because it has paved the way for more women to be appointed at a higher level in future,” she said.

Ms. Zaleha, a professor of law who helped lobby for the appointment of female judges, said that the 2005 fatwa was made at the national level, that states had to issue their own fatwas, and that it took the support of the Shariah chief judge and a new government minister to help make the appointments a reality.

Meera Samanther, president of the Women’s Aid Organization, a nongovernmental organization, said it was disappointing that it had taken so long for women to be appointed Shariah judges.

“There’s always been this fallacy that women would not be able to articulate on religious issues,” she said. “Apart from them being appointed, we hope they will also apply feminist principles.”

http://www.nytimes.com/2010/07/15/world/asia/15iht-malay.html?_r=1