islamic law and cedaw | 315 islamic law and cedaw: managing diversity, developing consensus in...

Islamic Law and CEDAW | 315

Islamic Law and CEDAW:Managing Diversity, Developing Consensus in Muslim Communities1

Salbiah Ahmad2

1. Introduction

This chapter is prompted by the concern of broad reservations to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), by States parties which have identified themselves as Islamic. A broad-based or a blanket reservation denies the efficacy of the treaty as an instrument of international cooperation. CEDAW has been ratified by 186 countries, about over ninety percent of the members of the United Nations.3 CEDAW offers a substantive standard of equality approach in determining discrimination against women. While the substantive standard of equality may apply in determining discrimination of both men and women, CEDAW is primarily concerned with the elimination of discrimination against women. The paper does not suggest that Muslim majority countries are singled out as belligerent or that there is an equality deficit concentrated in the culture and religion of Muslim peoples. The periodic reports to the UN CEDAW Committee (the CEDAW Committee), the treaty body for CEDAW, show that most countries have their equality deficits when it comes to complying with international standards on human rights. The fact remains that broader reservations are made with reference to Islam or Islamic law.4 This requires investigation for a variety of reasons although the main concern would be the clarification of the obligations of States parties as duty-bearers to respect, protect and fulfill rights. International human rights protection is historically state-centric with emphasis on the human rights obligations of the state.

316 | Law, Jurisprudence and Human Rights in Asia

There is a practical difficulty in starting the conversation as States parties do not generally make the effort to explain the interpretations (fiqh) that they have relied upon in justifying their reservations to CEDAW and why the reservations are necessary. In order to build the international cooperation and consensus, it is necessary for States parties to make their case by providing an explanation of the particulars as to how and why CEDAW provisions may be “culturally illegitimate” or contrary to Islamic law, the interpretation of the reservation and its effect. Islam can play a significant positive role towards the practical realization of human rights in Muslim societies as human rights in Islam, begins with the idea of justice (adl). Justice is an obligation owed to God and owed by human beings to one another. The pursuit of human rights has as its ultimate goal, the pursuit of justice.5 The question arises as to whether the justice principle owed to God and to humankind is synonymous with gender equality and the substantive standard of equality underlying CEDAW? Or is there a different standard of gender justice in the Islamic frame of reference because of the different conceptions of law and the different historical experiences of Muslim societies and Muslim women? We can pose the question if universality means that all human beings are entitled to the exact same right in precisely the same manner. Or is there room for a degree of variation, and to what extent or on what grounds? Allowing people full cultural expression (language, religion, culture and ethnicity) is an important development end in itself. Culture, tradition and religion are important facets of identity and belonging.6

There are these conceptual and practical difficulties. However the effort to establish and implement human rights norms should not be abandoned for these reasons. The challenge is to develop and implement strategies to overcome the difficulties, rather than forfeit the possibility of success.7

2. Reservations Based on Islamic law

Brunei Darussalam has a blanket reservation, which in part states that the government “expresses its reservations regarding those provisions of the said Convention that may be contrary to the Constitution of Brunei Darussalam and to the beliefs, the principles of Islam, the official religion of Brunei Darussalam”. Thailand, the Philippines and Singapore have minority Muslim populations and Islamic law is part of the legal system which is applied over Muslims. Singapore has a CEDAW reservation over Articles 2 and 16 “where compliance with these provisions would be contrary to religious or personal laws”.8


Malaysia, a Muslim majority country has reservations to CEDAW on the basis of “the Islamic Sharia law and the Federal Constitution”. Malaysia has partially lifted its reservations in 1998. The remaining reservations are on Articles 5(a), 7(b), 9 (2), 16 (a)(c)(f-h).9 Islam is declared the “religion of the federation, but other religions may be practiced in peace and harmony in any part of the federation”.10

Indonesia, declared the most populous Muslim majority country, has no specific reservation to CEDAW based on religious or personal law.11 Unlike Malaysia and Brunei, Islam is not declared a state or the official religion in Indonesia. The Pancasila (The Five Pillars of the State defined in the Constitution of Indonesia) however, includes the belief in the one, almighty God.12 However, the fact that Indonesia has a Muslim majority population, compels its government to consider Islamic teachings and opinions of Muslims in providing for Islamic law and its implementation or face opposition from its Muslim majority population.13 In 1999, Indonesia introduced a decentralization scheme for regional autonomy, which prompted several areas expressing interest in the full implementation of Islamic law.14

In the last decade or so, the CEDAW Committee has proposed further and better particulars of reservations based on Islamic law. The Concluding Comments to Malaysia’s combined initial and second periodic reports proposed that the government access information on “progressive interpretations of Islamic law”.15 Although there are no Islamic law-based reservations in Indonesia, the CEDAW Committee has found it necessary to suggest the investigation of progressive interpretations that are “supportive of women’s equality”. It has also expressed concern on the restrictive interpretations of Islamic law which discriminates women in several regions in Indonesia.16

Similarly, the CEDAW Committee encourages the government of Singapore to study comparative jurisprudence and legislation of other countries with similar legal systems as regards the interpretations of Islamic law and its codification.17

3. Islam and Human Rights –The Change from Within

For human rights to be universal, it must be integral to the culture and experience of all societies everywhere. Human rights require validation in terms of values in each culture and in terms of shared or similar values of all cultures. Human rights could provide an appropriate framework for human understanding of Islam and interpretation of Islamic law.18 The discourse of human rights and religion aims to shrink the core if any, of the irreconcilable differences between religious values and human rights.


This requires an intra-religious reflection and a cross cultural exchange to minimize the differences. The Qur’an in verse 49:13 reminds Muslims that males and females, nations and tribes have been created in order that humans may know one another. The verse reaffirms the need for social cooperation and mutual assistance in order to achieve justice. The promotion of human rights as a framework for a consensus on justice would require the support of three factors.19 Firstly, the content of internationally recognized human rights standards must be inclusive of all priorities and concerns. Secondly, the mechanisms and processes for their implementation must be multilateral and institutions are not ad hoc. Thirdly, the universality of human rights as a normative and institutional framework must also challenge several dominant assumptions about economic and political relations at national and international levels. The dominant assumptions would necessarily include the challenge posed by the post-colonial feminist analysis that the liberal feminist project may have reinforced the first world/third world divide between women. Liberal feminist positions have not adequately address how the colonial past continues to inform the postcolonial present, contemporary relationships of domination and subordination and understandings of difference, where treatment of difference is connected to the history of European colonial expansion.20

The liberal feminist project of human rights assumes that women’s needs and desires are both uniform and universal. Gender becomes a universalizing strategy that argues that all women are similarly oppressed. Gender becomes the axis of identity and location devoid of analysis of economic, labour, ideological, ethnic, political and other divisions and differences among women.21 A postcolonial feminist analysis raises questions of “imperialist and essentialist” assumptions of the liberal feminist project where third world women and especially Muslim women are victimized by their cultural values and practices, needed to be rescued and rehabilitated.22 These concerns would equally apply in the national context where Muslims constitute a minority group.23

Muslims today are recovering and reclaiming the agency to determine their own futures under the dominant international economic, financial and political institutions which support undemocratic regimes. The “war on terror”, the Bosnian massacre, the question of Palestine and occupied lands have a psychological bearing on the collective Muslim mind. Instead of being able to create a rationale distance vis-a-vis the heritage of the past, Muslims were pushed to cling to the past. Any challenge that is embedded in the discourses of theology, law, philosophy and other forms of thought is met with resistance and viewed as a threat to Islam.24


For Muslim societies, any reform to Islamic law, firstly requires a response from within the Islamic framework that understands the past with compassion, respect and analysis. This is a fundamentally internal Muslim struggle. Reformers make the point that the change that is needed is change in an organic relationship to the inherited civilization as it would be untenable to coerce people into accepting a human rights system that they do not consider legitimate.25

The primary sources of Islamic law are the Qur’an (which Muslims believe to be the final and conclusive revelation) and the Prophetic Traditions. The systemic development of fiqh took place about 100-250 years after the death of the Prophet (d. 632 AD) from the time of early Abbasid. This period in the second and third Islamic centuries saw the emergence of the main schools of Islamic jurisprudence which corresponded with the period of the founding jurists.26 Women’s rights in Islam have a traditional association with family law. This is traced to the kin-based pre-Islamic society or the early Muslim community where kinship (tribe, kin group, clan, and lineage) served as a basis for political association and action. The size of a tribe may vary ranging from a few hamlets to entire provinces. Women’s rights are as defined in family law and, by extension in the society. This relates to legal personhood, procedures for marriage, spousal rights and obligations, conditions for divorce, custody of children and inheritance.27 The patriarchal gender system is not unique to Muslim societies. It is prominent across the entire belt from North Africa, and across the Middle East (including Turkey and Iran) to South and East Asia (Pakistan, Afghanistan, northern India and rural China). This is regardless of religion. These societies are characterized by early marriage, restrictive codes of behaviour for women and the association of family honor with female virtue.28

The founding jurists lived at a time where males had wide authority over females as grandfathers, fathers, uncles, husbands, brothers and sons. Although women at this period were recognized as transmitters of the Prophetic Traditions (Sunnah), they were not recognized as participants in the intellectual process of fiqh development.29 Male dominance in these kinship relations is a running thread in fiqh principles formed in the first three centuries of Islam. To date, this large body of work is a main source of reference on Islamic law after the Qu’ran and the Prophetic Traditions.

(i) Reform and Gender Paradigms

Islamic law reform in the region took its inspiration from the 19th century reform of the Ottoman period. Policy makers adopted the concept of siyasa shariyya (power of the ruler/state to administer Islamic law).30 The move to


codify fiqh into legislation was influenced by the codification efforts of the French, German and Swiss at that period. There are two facets to this codification-reformation trend. The fundamental sources (Qur’an and Prophetic Traditions) and the methodology of deriving fiqh (usul al-fiqh) are accepted “without question” (the product of revelation). Beyond this, the ruler has the discretion to create rules to meet the aims of social justice (the product of reason). The most common methodology employed by policy makers in this codification-reformation trend is a copy-paste method of takhayyur (selection) and talfiq (amalgamation). The copy-paste procedure includes the choice between two juristic opinions within one school of thought, a preference for one school of thought over another, the upholding of a variant or minor/isolated opinion, and the patching up of legal rules from a combination of views of individual jurists and schools.31 This ‘neo-ijtihadi’ procedure has no sanction in the methodology of deriving fiqh (usul al-fiqh) in the pre-modern jurisprudence of the majority of juristic schools of thought. However, its use since the 19th century reformation has wide acceptance by law-makers and civil society groups. The motivation of meeting needs of ‘social justice’ had included selecting the pre-modern or historical fiqh beneficial to women and introducing administrative procedures in the implementation of particular laws. The term ‘neo-ijtihad’ takes its nomenclature from the incident of “closing of the gates of ijtihad” that some scholars claim to have occurred after the 9th century AD after the period of the founding jurists, which allegedly marked the end of independent inquiry. Thus the neo-ijtihad selection-amalgamation technique was developed in consequence to this understanding. This event of closing of the gates is disputed and remains as a memory of intellectual impasse in the development of Islamic jurisprudence.32

The term ‘scholastic neo-traditionalism’ has been offered by Auda as an appropriate description of this 19th century trend.33 Scholastic neo-traditionalism is opened to more than one school of thought/law for reference on valid rulings. The scholastic neo-traditionalism approach is used in selecting fiqh for law reform purposes and for the issuance of fatawa (sing.) or ruling. This involves a descriptive comparison of one or more opinions from traditional schools of thought/law, followed by a recommendation of one of them.34 To reiterate the point made earlier, this approach does not question the interpretation of the fundamental sources and the methodology of deriving fiqh (usul al-fiqh). The selected historical fiqh to meet the social justice needs for women remains within the traditional pre-modern framework. Justice is perceived as an act of kindness to women, as wards of male guardians. The reforms


retaining the wide authority of males over females and the ensuing laws which mirror the pre-modern fiqh were enacted to give women “unprecedented respect and protection in the patriarchal context (emphasis added)”.35

This chapter draws three examples, consent of guardian and minimum age of marriage, equal right to divorce, and polygamy.

(a) Consent to marriage and minimum age of marriage of women

The consent of the guardian (almost always a male relative) is a condition (shurut) of a marriage of a woman who has not been married before. Its absence invalidates that marriage in most Islamic family law legislation in Southeast Asia.36 Girls may be married off by her guardian, based on a community sanctioned cultural practice (al-urf) of the Arabs at the time of development of fiqh before the 9th century. This cultural practice is entrenched in a Prophetic Tradition (Sunnah) of the marriage of Aisyah at age nine to the Prophet.37

There is however, no Qur’anic sanction of a minimum age of marriage. In pre-modern usul, the custom of the community applies where there is no specific text. The principle of al-urf was to accommodate the circumstances of some people that are different from Arab customs. However, the variations in human life have come to reflect none other than the ‘default’ medieval Arab world.38 The pre-modern jurisprudence had developed protective measures to the exercise of male authority in the two given examples. A woman may refuse the marriage and in one Prophetic Tradition, it was reported that a woman named Khunsa bint Khidam had successfully managed to set aside her marriage contracted on her behalf by her guardian, upon a complaint to the Prophet.39

In the case of the marriage of underage children, a girl-child may opt out of the marriage contracted on her behalf upon reaching puberty by exercising what is known as the option of puberty (khiyar al-bulugh). Some of these measures may be limited to one particular juristic school and there may be a diversity of legal opinions and rulings on the same point. There is however, very little information on how women throughout Muslim history have used these protective measures or if they needed the support of their family and their community in accessing these rights. These may have been mediated in kinship arrangements. The 19th century codification effort may have also introduced safeguards to meet the social justice imperative, by providing judicial oversight of the guardian’s consent to the marriage. A handful of cases have made their way to court and more in court-sanctioned arbitration which is a positive sign that such avenues have been useful and beneficial to women. The general reluctance to remove marriage guardianship out of the equation is traced to the source of this fiqh in a Prophetic Tradition, thus rendering it unquestionable under pre-modern methodology.


Although legislation may provide for a minimum age for women, that age is still short of age 18. Again, there is that general ambivalence to rethink the source in a Prophetic Tradition.

(b) Equal right to divorce

Malaysian state family laws40 grant women several types of divorces, the khul’ (divorce by redemption), the takliq (conditional divorce) and fasakh (court ordered dissolution). With the exception of khul’, the others are fault-based divorces. In all cases, women require an arbiter such as a judge in a court of law to prove the facts and to validate the divorce. Pre-modern fiqh has given men at general law, a one-sided divorce privilege in the form of a divorce by talaq (unilateral repudiation). The talaq is retained in its original pre-modern form in legislation. The talaq need not be premised on a finding of fault. At general law, a wife need not be informed of this repudiation or need to be present. The divorced wife’s only remedy is compensation (mutaah). As in the consent by guardian situation, pre-modern usul did introduce fiqh on the proper manner of talaq as of all things permitted by God, it is the most reprehensible. Prophetic Traditions attest on the need to exercise talaq with caution and to safeguard the wife’s welfare. The overriding power of male authority had prevailed and the social problems arising from the exercise of talaq is already a matter of concern from as far back as the time of the second caliph, Umar al-Khattab (634-644 AD). Reform has introduced procedural safeguards to a unilateral repudiation without changing the principle of a unilateral divorce. Legislation may provide for the application to court by men for talaq primarily to ensure that all things have been considered before its exercise. An out-of-court talaq does not invalidate it. A husband may be fined for an out-of-court talaq. The court procedure is to confirm the talaq and allow the former wife her ancillary claims upon divorce. The prerogative of a no-fault unilateral repudiation is premised on the Qur’an supplemented by opinions by pre-modern jurists that men are required to support the household as protectors and guardians of women, whereas women are protected by their families. A grant of a unilateral divorce to women would mean unsettling the husband’s economic investment.41 While men do not have an exclusive right to divorce, women and men do not have equal or the same rights of divorce in general law and in legislation. The situation is similar in Indonesia, Singapore and Brunei with varying manners of implementation either as a general law or as legislation.42 The 1977 Philippines Code of Muslim Personal Law provides for a delegated talaq (talaq al-tafwid) in Article 51. The provision envisages an agreement by the husband to delegate his talaq in favour of the wife and that “the repudiation


would have the same effect as if it were pronounced by the husband, himself ”. This divorce is only available if such an agreement has been entered into by the parties. Tafwid indicates that the delegation cannot be withdrawn. However, at general law, conditions may be placed before the exercise of the tafwid by the wife. There is a need to document the prevalence of such agreements, the nature of agreements and the actual practice of women’s exercise of the delegated divorce.

(c) Polygamy

Polygamy of up to four wives is not illegal in the family laws in the region. Law makers have opted for the policy to restrict the practice of polygamy, leaving the substantive right to polygamy unquestioned. Singapore has one of the earliest law reforms on polygamous marriages in the region. The Muslims Ordinance 1957 as amended in 1960 requires an application for polygamy be made to court.43 In scrutinizing the application, the court have considered financial equity, cohabitation in turn, separate accommodation, kindness to wives, consent of the existing and proposed wives, protection of women, lineage/children, physical unfitness for conjugal relations,44 pregnancy of the proposed wife, insanity, love and affection, and the role of the husband as husband and father.45 It is of interest to note that where ‘higher sexual drives of husband’ are cited the court has advised the applicant to observe the fast (“keep chaste”) as is recommended by the verse in the Qur’an (24:33) especially if he is unable to meet the other criteria of justice and fairness in marriage. The requirement of consent of wife and existing wife is a useful consideration as it allows the court to elicit if the current wife has been compelled to consent to the proposed polygamy on the threat of a divorce, if the proposed wife knew that the applicant is already married, if there are complaints of unkind treatment in the existing marriage, if the husband is a good and responsible father to the children, if he has wives in other jurisdiction (the-wives-in-India cases in the case of immigrant Indian Muslims in Singapore).46

This does not mean that men do not contract out-of-court polygamous unions. For as long as the practice is not outlawed, these marriages continue as out-of-court unions. The state may impose penalties for out-of-court polygamous marriages. The Sharia Courts in the region are not given the power to outlaw an out-of-court polygamous marriage if the marriage is valid under general principles of law.47 The supporting rationale for not outlawing out-of-court marriages is to avoid delegitimizing children born out of the union and to grant women in such unions to apply for family support. The polygamy verses in the Qur’an (4:3; 4:129) do however give an indication that the preferred form of marriage is monogamy. Verse 4:129


stipulates that it is not humanly possible to treat wives with equal fairness. Countries opting to restrict polygamy accept the interpretation that 4:129 underscores only the inability to love wives equally, and polygamy is permissible as long as there is equal treatment in material benefits. Tunisia’s Majalla or the Code of Personal Status of 1956, outlaws polygamy. It is the only Muslim country which has this provision in its legislation. This was not prompted by reliance on any juridical fiqh. The family law reform was part of the strategy of the political leadership to consolidate the authority of the state to extinguish tribal politics and kin-based solidarities to recast social and power relations in the society from loyalty to the tribe to loyalty to the state. The state sanctioned family law is a nuclear model and it expanded women’s rights.48

The judgments of the Shariah Court in Singapore do show that it may be possible to restrict polygamy through judicial scrutiny in an application to marry a second and subsequent wife. Shariah court judges are open to exploring women’s views and experiences of polygamy. Creative decision-making do make a difference where the letter of the law may fall short of expectations. The difference between men and women are normally emphasized in two senses, although there may be cultural variations. The difference is habitually represented and simultaneously, it is reinforced as a norm. It is represented as natural, rooted in biology and confirmed in history. Sex roles are accepted, idealized as contrasted and complimentary.49

In these three examples, the social assumptions of males and females from the first three centuries of Islam, the culture of the “default medieval Arab World”, prevailed. The eclectic approach to law reform by selection and amalgamation left these assumptions intact and the rules or procedures enacted as law to supplement the operation of substantive rules merely reinforced these assumptions. If this can be referred to as a kind of ‘gender activism’, it is within the purview of gender traditionalism. This means that social assumptions or traditional perceptions of male and female ‘roles’ are visible but left unquestioned.

(ii) Gender Traditionalism and the Protectionist Approach.

The scholastic neo-traditionalism approach as illustrated in the examples of minimum age, consent of guardian and polygamy whether at general law or in reformed legislation through siyasa shariyya is problematic. The approach utilizes pre-modern fiqh which supports gender traditionalism. Gender traditionalism generated rights for women in Islamic history. Women in pre-modern fiqh are given legal personality. She has a right not to


be subject to acts that may impair her health, a right to perform her religious duties and rituals, the right to own property, the right to have family relations with her parents and relatives and the right to socialize within her home including entitlement to female companionship.50

Change in the social status and rights of women in the first three centuries of Islam show an incremental change. The Qur’an, as Muslims believe was revealed in stages to make allowances for a gradual adjustment or change. Women are inter alia acknowledged as competent witnesses, they are granted a share in inheritance, and polygamy is restricted to four. Gender traditionalism supports a protectionist approach in women’s human rights. In the given examples, gender traditionalism and the protectionist approach may not appear to lend strong support to reform legislation that would promote monogamy as the form of Muslim marriage, the same and equal right to divorce and the outlawing of girl-child marriages. This approach to law-reform under the rubric of the scholastic neo-traditionalism approach has its limits. It is always possible to locate a pre-modern fiqh, even an obscure opinion of a lesser known school of thought from the inherited body of pre-modern fiqh that would provide an answer to a contemporary question.51 The fact remains that such a response would be based on the pre-modern understanding of male-female relationship, of males as guardians over females. Gender traditionalism makes gender visible but leaves it unquestioned.

(iii) Rethinking Methodology, Gender Equality in the Text

Gender was not a category of thought at the time of the early centuries of Islam. The pre-modern fiqh is fiqh al-waqidah or the fiqh of lived reality as understood by Muslims of that period to facilitate what was conceived/interpreted as the achievement of a just and moral social order.52

Gender provides an analysis on differentiation between and relative positioning of women and men. The gendering of women and men is also affected by economic class and ethnic differentiation and others and these additional factors also help construct what is a man and what is a woman in different circumstances.53

The critique of the infallibility of pre-modern fiqh and methodology of deriving fiqh, by modernists paved the way for a gender re-reading of the text relevant to male-female relations. Fiqh is shifted from the realm of revealed knowledge to the realm of human understanding of revealed knowledge. Thus no fiqh is qualified to be classified as revealed regardless of the considerations of authenticity, linguistic implications, consensus (ijma) or analogical reasoning (qiyas).54


For reformers in the internal dialogue, the acceptance of social assumptions about men and women as natural or inherent to their biology requires a fresh investigation into the text or scripts. An important contribution to gender analysis of the inherited fiqh has been a re-reading of verse in Qur’an 4:34. This is a verse on marital relations. Pre-modern jurists have extrapolated the gender meanings interpreted from this verse to all realms of law and life outdoing other verses which promote a reading of equality of values between women and men. Reformers disagree that the reading to 4:34 supports the pre-modern view that men are protectors and guardians of women as God has granted men a degree above women. I refer to the work of theologian Amina Wadud in this regard.55 Wadud explains her methodology or approach as a hermeneutical model which deals with three aspects of the Qur’anic text in order to support its conclusions. These are, the context in which the text was written; the grammatical composition of the text (how it says what it says); and the whole text, its Weltanschauung or worldview. She makes the distinction of making an analysis of the text and not the interpretations of the text.56 By going directly to the text in a fresh reading/analysis, Wadud overcomes the historicity of pre-modern fiqh and its juridical methodology to re-discover the universals to the Qur’anic message. The operative words for analysis are “qiwama”, “darajah” and “faddala”. “Qiwama” is rendered as “breadwinners” or “those who provide a means of support or livelihood”. It does not charge the husband with being the breadwinner nor designate him as head of household. Men are not as a class, qawwamun over women as a class. The verse speaks about some men, not all men, who are breadwinners. As a verse speaking to a marriage relationship, the terms a “degree above” (darajah) and “preference” (faddala) are used in a limited context with regard to human exchange and mutual responsibility between males and females. Where women are performing or choose to perform child-caring (not inherent or biological) and child-bearing roles (biological but not inherent as not all women want to bear children), roles which are valued in society, it may be preferred that men fulfill a function that would result in the creation of a balanced and shared society, like taking responsibility for the maintenance of his wife and children.57

In the context of marriage, which is a relationship of companionship and compassion (mawwaddah wa rahmah), it follows that the “household roles” are shared. Child-caring, homemaking and seeking gainful employment are roles not limited to one’s biology. Roles are shared or reversed in any given situation. Wadud’s analysis of verse 4:1 is also key to a revived gender analysis in the Islamic framework58. This is the verse on the origins of humankind. She analyses 4:1 together with several others (for the worldview). The Qur’an


establishes that humankind, males and females (zawj) are created (min) in pairs from dust, then from a single nafs (fluid, sperm-drop). The Qur’anic rendition of creation did not state the origins of the human race with Adam, the man. Qur’anic references child-bearing functions of the female (7:189; 13:8) but not the cultural perceptions of ‘mothering’. Women and men have the same capacity for moral agency, choice and individuality (Verse 49:13); they are each other’s awliyya (guides and protectors; verse 9:71). Alternative and gender-sensitive exegesis is crucial to the gender reform agenda in Islamic law as it provides another view of the revelational evidence and proposes another ‘truth’. From this understanding, the Qur’an worldview supports the equality of women and men, that reading recognizes difference (sex/biology) and the differences of roles/functions arising from biological differences. The reading also recognizes that constructed roles like child-caring and mothering are not limited to one’s biology. The notion that women and men are awliyya (guides and protectors) of one another suggests a relation of respect and mutual cooperation resting not on the idea of male “superiority” but on the premises of equal partnership. It follows that the preference of terms “equity”, “complimentary”, and “complimentarity”, appearing in the national periodic reports to the CEDAW Committee over the term “equality” are used to describe the values or functions of men and women in relation to gender traditionalism in general. Under gender traditionalism, these terms were limited in its description to females, that is, the social assumptions on her role/function/existence as complimentary to the male. It is best to clarify the language in tandem with the equality (in value) of women and men.

(iv) Decentering and Reclaiming the Centre

The contemporary approaches in re-claiming principles of fiqh are varied. All appear to apply “deconstruction in order to de-center some sort of binary logocentricism”. Deconstruction attributed to John Derrida, is a tactic of de-centering that disruptive and arbitrary hierarchies to establish an “other logic”, to reclaim the centre. Deconstruction de-centers oppressive social structures and discriminatory laws. This exercise for Muslims requires a reclaiming rooted in the basic established beliefs; otherwise the theory will be “non-Islamic” and will not materialize into application.59

There is a critique to what is referred to as ‘text fundamentalism’ of modernist-reformers, that is, the reinterpreting of the text to support contemporary norms, although the scripts themselves appear to be in conflict with these norms. Reformers however, make the point that historical events


and specific juridical rulings detailed in the Qur’an should be understood within their cultural, geographical and historical context of the message. But there is also the universal message, values and purposes that should guide re-interpretation to the changing contexts.60

One such challenging project for modernist reformers are the texts on fixed-shares (faraid) or inheritance. There has been relatively no change to the fixed shares in any Islamic law legislation in the neo-ijtihadi period.61 The prescriptions dictate that a female has half the share of a male. There are exceptions where the shares are equal; in the case of parents inheriting from children, the uterine (of the same womb) sister with the uterine brother and where the sole inheritors are the husband and the full sister of the deceased.62 Pre-modern fiqh allows for the disposition before death, of one third by will. This is usually made in favour of a non-sharer under the inheritance rules, such as an adopted child. The practice of inheritance in Southeast Asia adopts the 2:1 formula for males and females. Muslims may under general law or by legislation make wills in favour of a person not related by blood which disposes only one-third of the estate. The other two-thirds will revert to the estate to be distributed upon death under the inheritance rules. Any disposal of property more than a third (to strangers or blood relatives) may be contested by the Qur’anic heirs or affirmed by consent by Qur’anic heirs after the death of the deceased. The province of Aceh in Indonesia has customary (adat) property dispositions to women which has become part of its Islamic law in practice. In several areas in Aceh, there is the custom of gifting land to daughters upon their marriage. This bequest upon marriage, the harta peneulang does not form part of matrimonial property in the marriage unless there is agreement to this effect. The gifting of harta peneulang balances the weightage favouring males in the inheritance rules. The Indonesian Compilation of Islamic Law (the KHI), confirms customary law and practices where property of women and men acquired before the marriage does not form part of the matrimonial property. Each is entitled to the “full management” of each other’s property.63 In Aceh, there is preponderance for equal division of inheritance by family agreement.64 The Sharia court in such cases would allow the family to consider the equal division by family arrangement and have the agreement (oral or written) endorsed by the court. Family arrangements on the distribution of property upon death are common in Southeast Asia as part of the wider principle of the freedom to contract. Consensual family arrangements on distribution (equal or varying shares) are allowed under the rubric of maslaha (public interest) to meet the objectives of social justice through reason. In essence, this device avoids the prescriptions of the text on inheritance.


Clearly these practical applications to the fixed-shares heritage show ingenuity in going around the text. There is, in Indonesia real efforts to facilitate internal cohesion between adat (customary law) and Islamic law. The big question is whether can there be a change to that basic law as prescribed in pre-modern fiqh like the 2:1 rule in inheritance? Indonesian reformers like Shiddieqy (d. 1975) and Hazairin (d. 1975) proposed the idea of Indonesian fiqh starting in the 1940s.65 Both reformers wanted an emphasis on the specific values of the local community, including the local customary law and practices. Shiddieqy however, has a scholastic neo-traditional tendency by relying on the foundational sources and pre-modern usul fiqh, while Hazairin appear to be a modernist by proposing a new school of law (madhab), the Indonesian school of thought to reflect Indonesian history and to respond to the needs of society. These streams would determine the outcome of the fiqh and it does have implications on gender equality. The citation of these two reformers does not foreclose the contributions of other Indonesian reformers. These two examples are cited to show the implications arising from two different streams of thought/analysis. In the local discussions on the change of the 2:1 formula in inheritance, there is reliance on the fact that the customary law of the majority Javanese community provides for equal shares, that the Qur’anic prescriptions should be seen as an early example of affirmative action for women, a temporary measure in order to allow for a gradual acceptance to full equality. The prescriptions are a “text-in-progress”.66

(v) Maqasid Shariah

Modernist reformers propose the revitalization of the goals of law or maqasid as a standalone principle or fundamental methodology for Islamic law.67 The new maqasid would be induced from the text and not from the body of fiqh literature in the pre-modern schools of thought/schools of law. This approach seeks to overcome the historicity of fiqh edicts and represent the text’s higher values and principles. The examples of maqasid have included freedom (hurriyah to mean freedom of thought, belief, expression, action), justice and freedom, human dignity and rights, women’s rights,68 treating women fairly,69 human development70 and others71. Indonesian intellectuals have proposed the Indonesian maqasid to be justice (adl), equality (musawah), democracy (shura) and good behaviour towards others (mu’ashara bi al-maruf).72 The maqasid theory, supported by the purposefulness of ‘legislative intent’ derived from the text would contribute to the development of the fundamentals of (new) fiqh/Islamic law and current attempts to address the inadequacies of pre-modern methodology.73


This new usul would be extended to the Prophetic Traditions providing a ‘systematic coherence’. A systematic coherence would then authenticate Prophetic Traditions based on how much they agree with the principles of the Qur’an.74

4. The Equality Standard

(i) The Substantive Equality Standard

The protectionist approach to women’s rights which flowed from gender traditionalism focuses on particular values attributed to women as “natural” to the person and unchangeable. This approach does not investigate the external, structural or systemic causes of the subordination and discrimination in relation to the subject. Thus the neo-ijtihadi Islamic law reform approach does not challenge the social assumptions about the “natural” qualities of men and women. In the family law examples in this chapter, there was differential treatment in the law reform and thus differential outcomes. The corrective approach to women’s rights focuses on equal treatment and equal outcomes. It corrects the protectionist approach (gender traditionalism) like the protectionist approach, the corrective approach also looks at social assumptions, the differences of women and men. Unlike the protectionist approach, the corrective approach does not accept the differences as “natural”. The assumptions to the differences are examined for the purpose of discovering and assessing the disadvantage resulting from that difference. This is investigated in order to develop a response that will address the disadvantage or to eliminate the disadvantage. Unlike the protectionist approach, social assumptions are not left unquestioned. The protectionist approach by not questioning social assumptions may result in discrimination against women under CEDAW. While men also face discrimination under gender traditionalism, CEDAW is a convention to address and eliminate discrimination against women. The corrective approach to women’s human rights is the approach used by CEDAW. Under CEDAW it is referred to as the substantive standard of equality. In summary the substantive standard of equality is applied to address discrimination based on gender difference and differential treatment against women. Article 1 of CEDAW defines discrimination against women shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, social, cultural, civil or any other field.


(a) Impairment

Under CEDAW, different treatment of women as compared to men is discrimination if that different treatment results in impairment that results in nullification of the rights and freedoms of women. Special treatment or measures/affirmative action in women’s favour that seeks to correct systemic or historical disadvantage to women in order for women to achieve equality is not discrimination under CEDAW.75 Where the protectionist approach employs special measures to protect the women’s weaker position in relation to men (emphasis added), the substantive equality approach employs special measures to correct gender traditionalism by expanding her choices. Special measures are in place to overcome the structural, social and cultural disadvantage that women face.

(b) Restriction

A restriction occurs when a right is curtailed or limited. For example, a provision in the law which stipulates that a women’s right to earn an income is subject to her husband’s consent may arguably be a restriction of her (equal) right to earn an income. The 1977 Philippines Code of Muslim Personal Law for example, stipulates in Article 36 that the wife may with the husband’s consent, exercise her profession or engage in occupation and business. This is a restriction and it is a discriminatory measure.76 This does not mean that both parties should not discuss the options about sharing the functions of managing a household. The point is that women should not have to face discrimination on gendered assumptions about her role in a marriage or in society. There is also a common stipulation in Islamic law which mirrors pre-modern fiqh of “disobedience” (nusyuz). The common understanding of a nashiza (disobedient wife), is one who is disobedient to her husband. These are the implications of gender traditionalism. Although the Qur’an addresses the nusyuz on the part of the husband in 4: 128 this seldom makes its way into law and enforcement.77

A reform to this pre-modern rule is to make the judge, the arbiter to make a finding if the demands of the husband have been unreasonable or otherwise.78 This is the judicial oversight over male authority over women in gender traditionalism. In focus group discussions on the issue of husband’s permission or consent as a precondition to a woman’s exercise of her right, women and men offer the views that permission or consent should not be unreasonably withheld by a “good Muslim” husband. Or that a good Muslim husband should not make unreasonable demands upon his wife. Where the legislation is silent on these conditionalities assumed of the “good wife” and the “good husband”, these still operate at general law. Such a recourse in any case is personal and is inadequate


to count as a State-party’s obligation in itself. The demand for equality has to operate at the level of institutions and not left to the personal exercise of good conscience. While CEDAW targets women in addressing discrimination, this does not mean that responses of the State-party on addressing discrimination in national law, policy and programmes, would eliminate men as partners in a comprehensive agenda to eliminate discrimination against women. One of the principle targets in CEDAW is the equality of outcomes and to achieve this target the inclusion of men as partners for change is crucial.

(c) Exclusion

Exclusion is the denial of rights and freedoms to women on the basis of (biological) sex or gendered assumptions. For example, the pre-modern opinion that women cannot lead her community/nation is discrimination under CEDAW. This is attributed to the Prophetic Tradition narrated by Abu Bakra which stipulates that a nation under women’s leadership will not prosper. The Qur’an does not imply or make any statement supporting the view that men are “natural” leaders. In fact, the Qur’an chose to name an example of an excellent leader in the person of the Queen of Sheba, Queen Bilqis.79 The pre-modern fiqh conclusion of the Prophetic Tradition is gender traditionalism that disables or disentitles women from accessing the opportunity to be leaders on an equal footing with men. Abu Bakra, the narrator of this Prophetic Tradition has, in any case a record of giving false testimonies and was duly sentenced by the second caliph, Umar al-Khattab. This point alone should render his narration, void.

(ii) Temporary Special Measures

The CEDAW Committee’s General Recommendation 25 sets out the meaning and implications of temporary special measures in CEDAW to the domestic level. Temporary special measures are aimed at accelerating de facto equality between men and women. This mechanism is to address the structural, social and cultural changes necessary to correct past and current forms and effects of discrimination against women. Rather than as an exception to the norm of non-discrimination, this mechanism is part of a necessary strategy to affect de facto and substantive equality. The meaning of “special” is not a reference to vulnerable and related terms, but is “special” as measures designed to serve the specific goal of de facto and substantive equality. The use of temporary special measures as a mechanism to advance equality does not offend Islam or Islamic law. In fact the history and the methodology of deriving fiqh, supports the idea of incremental change to allow for gradual adjustments. Among others, women are recognized as competent witnesses,


restrictions are placed on the practice of polygamy and the exercise of the unilateral divorce by talaq, and women had the right to inherit. These developments are part of “protective measures” under gender traditionalism in historical Islam. CEDAW’s meaning and proposals of temporary special measures constitute a logical development to the recovered Qur’anic paradigm of the substantive equality of women and men.

(iii) The discredited formal equality standard

The formal equality standard of treating the similarly situated alike or “treating likes, alike” found its expression from the equality litigation in civil rights laws. As an approach to women’s rights, it has been referred to as the “gender-blind” approach to law. If you are the same, a different treatment is discrimination. If you are not the same, then different treatment is justified and not discriminatory. Thus, because women are different from men (biological and social assumptions of female worth and roles in relation to men), their different treatment in the law is justified. The main pitfall of this approach was that it ignores the gender differences of men and women and to expect women “to be like men or be similar to men” before women qualify for equality. An example of the askewed application of a formal equality standard is the argument that if polygamy is permissible for Muslim men, then the denial of this same right to women is discriminatory”.80 One suspects that a simple focus group discussion of Muslim women will show that this is not the desire of women to be “treated like men”. It offends both neo-traditionalists and modernists. The formal approach to law was supplemented by the protectionist approach. Both the formal and the protective approaches are supplanted by the corrective approach or the substantive standard of equality.

5. Managing Diversity, Developing Consensus

The emergence and the implementation of international human rights embody both the obstacles arising from the always-shifting interplay between the valuing of difference (to sustain diversity) and the quest for sameness (to re-establish normative authority).81

Change is incremental and the implementation of international human rights at the domestic level would require a cross cultural engagement to ensure that human rights norms are received and understood in the cultural context of a community in question. When a particular human right is based on a value or norm accepted by the widest range of cultural traditions, it would be less likely to be open to charges of ethnocentricity or cultural imperialism.82


In this regard, the recent exercise by Indonesian intellectuals and Muslim scholars to reform the KHI by producing the document called the Counter Legal Draft to the KHI (the CLD-KHI) is instructive.83 The 1991 KHI is a Presidential Instruction. There was interest in moving the KHI to become a national law. In tandem with this development, the Gender-Mainstreaming Working Group in the Department of Religion developed the CLD-KHI proposing reforms to the KHI in several areas namely the family law, inheritance and endowments. A draft was completed in 2004 containing 178 articles. The family law proposals included a minimum age of marriage at 19, the repeal of the condition of a guardian’s consent to the marriage of an adult (unmarried) woman, the repeal of the provision that the “husband is head of the family and the wife is housekeeper”, the outlawing of polygamy, converting the effect of an irrevocable divorce by redemption (khul’) as a revocable (bain sughra) divorce so that it has the same effect as talaq,84 the same right of reconciliation (rujuk), the validity of inter-religious marriage, and women as competent to be witnesses to a marriage. The CLD-KHI also introduces equal shares in inheritance. The CLD-KHI was launched in 2004 after two years of deliberation including field work. The launch had a mixed reaction from a variety of Muslim groups.85 Not all the proposals were rejected. On the face of it, the allegations that CLD-KHI is “destroying Islam”, that it is a product of “secular ideology” and “Western values” apparently led to its rejection by the Minister of Religious Affairs in 2005. However, there may be deeper considerations of the long-standing debate related to the Jakarta Charter that undermined the support for the CLD-KHI. These are political in nature related to the idea of nationhood which can be traced to the early Islamic resistance movements in the 19th century, the struggle for independence of a united Indonesia, the post-independence period and the downfall of the Orde Baru regime in 1998. Without a doubt, that prior text would be the political scenario which requires to be included in the strategy of civil society groups and policy makers in any endeavour of reformation of Islamic law. Despite this setback the CLD-KHI has been a subject of study in institutions of higher learning and a reference for regional regulations. Malaysia and Indonesia have ratified CEDAW for more than a decade. Indonesia has forged ahead with a national law No 7/1984 to incorporate CEDAW at the domestic level, issued a Presidential Instruction 9/2000 on Gender Mainstreaming in national development and working on a draft law on gender equality.86 Malaysia has yet to table CEDAW in Parliament to ensure its applicability to law and jurisprudence at the domestic level.87


(i) Gender Justice, Gender Equality Clarified

In any law reform exercise on Islamic law, there is a need to review or investigate the usul al-fiqh which predicates the preferred fiqh to be selected in national laws. The trend on usul since the 19th century is to gravitate towards the scholastic neo-traditionalism approach (eclecticism from pre-modern fiqh). This trend supports gender traditionalism as opposed to gender equality. The trend also promotes the protectionist approach to women’s human rights. This clarification of approaches to usul is necessary to enable reformers to chart the course on gender equality as justice and not gender traditionalism and protectionist justice. This analysis has not been clarified in the work on Islamic law reformation by civil society groups and policy makers. There is a preponderance in the gender analysis in current literature for the usage of “gender justice” (keadilan gender) instead of gender equality (kesetaraan gender). As set out in this chapter, the trajectory of the scholastic neo-traditional approach to Islamic law reform may do “justice” but that falls short of the Qur’anic ideal of gender equality. In any case, the choice of words should be linked to the premises that support the Qur’anic imperative of gender quality and the promotion of modernist usul to reclaim that imperative of substantive justice of equality. Language may be tied to country context, its history and culture, but the analysis has to be clarified in tandem with the Qur’anic world view on gender equality which is translated as the substantive standard of equality under CEDAW. This analysis should inform civil society, policy makers and States parties in making the clarification of country reservations based on Islam/Islamic law before the CEDAW Committee through the national periodic reports and NGO shadow reports. The current “best practice” approach by comparative country legislation has to be seen in this context as well. It’s a good first start, but it may be inadequate as these fiqh selections may embody gender traditionalism as a prior text and defeat the course of law reform on women’s rights. If need be, the rationale of the selected fiqh has to be reentrenched and reaffirmed through a modernist approach/method of deriving fiqh in order to avoid the historicity of pre-modern fiqh on women’s rights that has been the bane of problems in reform.

(ii) Targeting Gender Equality Strategically

We may be clear on what needs to happen, however, by implementing gender equality it sometimes hides the fact that differentiation exists in the world, and women will be adversely affected because gender differentiation still lives on. Thus while targeting equality, we should have strategies to address gender


traditionalism as well as in a parallel strategy in order to avoid unintended discrimination against women because the differentiation still lives on. These measures have been considered in CEDAW as inter alia temporary special measures to address the structural, social and cultural changes necessary to correct past and current forms of discrimination against women. For every action targeting women, there should be a parallel action which would transform women’s position relative to men. For example, a reform for a no-fault divorce by mutual consent88 (which eliminates the proof of fault in women’s divorces and acts as an equalizer to the no-fault talaq which privileges men), targets women and addresses women’s immediate condition. The strategic action would have to address a longer term objective that would allow women more control in their lives. It could be retraining, it could be the provision of day care for children and the elderly, it could be gender education for men and women. It could be a range of actions aiming to resolve gender-based inequalities. Actions have to be both targeted and strategic as change is incremental.

(iii) The Margin of Appreciation

The doctrine of margin of appreciation has evolved out of the European Court of Human Rights (ECHR) as a “management of diversity”. The ECHR hears cases from forty-seven member states of the Council of Europe, parties to the European Convention on Human Rights.89 Within this outreach, states and societies differ with regard to their social and political history, religion, ideology and cultural perceptions. The experience of the ECHR in managing this tension is instructive. The margin of appreciation is deference to national bodies in the examination of whether a restriction of a convention right is acceptable or not. The ECHR may in certain circumstances grant a wider margin of appreciation than in others. The effect of a wide margin of appreciation is that the application of a common standard leads to different results in different member states: the same facts that constitute a violation of a fundamental right in one state may be considered as a legitimate restriction of that right in another. It functions as a tool to balance uniformity and diversity within an international system of human rights protection.90 The margin of appreciation doctrine performs a number of roles: it is an expression of judicial restraint, an interpretational aid and a means of expressing the subsidiarity of the European Convention on Human Rights to the legislation of the member states and of demarcating the room left for national sovereignty vis-a-vis supranational control.


The margin of appreciation is an evolving process to help negotiate difficult waters of universality and local diversity. The ECHR however reduces the scope of the margin of appreciation when certain core aspects of a right are concerned. All rights can be conceived as having a core and a periphery. The further an element is removed from the core, the more room there is for diversity. Contextual diversity of interpretations cannot affect the core itself without undermining universality.91

The ESCR Committee supports this notion of “core” concept in its General Comment 3 where the achievement of core obligations is incumbent on States parties otherwise the convention would be deprived of its raison d’etre.92

The margin of appreciation in the context of the present discussion does suggest a novel way to address diversity and difference and it is helpful in working a consensus around core principles, the core principles being deduced from a cross cultural engagement on human rights. The same principle should apply in the reform process to Islamic law. The core principles which form the shared notions of justice in Islam and in international human rights instruments should provide a guide to the development of the maqasid for a revitalization of usul fiqh. This process or engagement should incrementally shrink the scope of “irreconcilable differences”.

Concluding Comments

The question that reformers are addressing is no longer whether Islam supports women’s human rights but, which Islam have Muslims chosen to construct? Islamic law for the most part relies on the interpretive act of the human agent for its production and execution. Islamic law is open to adaptation and change. It is contestable. If Muslims want to establish and claim a just society in which women and men are awliyya, equal partners and protectors, then it becomes necessary that Muslims seek to construct a society in which this vision will be realized. This will inevitably require Muslims to revisit the inherited civilization and work the hard questions.


Notes1. The countries considered in this article are Southeast Asian countries where Islamic law

is applied as part of the legal system over the Muslim population.2. LLB.Hons (Singapore), Masters in Comparative Law, IIUM, Malaysia.3. The latest signatory as of May 2009 is Qatar, having signed on April 29, 2009. Qatar, a

Muslim majority state did not place any reservations to CEDAW.4. The term “Islamic law” in this chapter refers to fiqh or juridical opinions of Muslim

scholars/jurists and to state legislation. 5. El Fadl, Khaled A. 2003. The Human Rights Commitment in Modern Islam. In Human

Rights and Responsibilities in the World Religions, eds. Runzo, Joseph et. al. Oxford, Oneworld Publications, pp. 301-364; Khadduri, Majid. 1984. The Islamic Conceptions of Justice. The John Hopkins University Press. Baltimore.

6. The Human Development Report, 2004. http://hdr.undp.org/en/media/hdr04_complete.pdf

7. An-Naim, Abdullahi. 2003. “Area Expressions” and the Universality of Human Rights: Mediating a Contingent Relationship. In Human Rights and Diversity: Area Studies Revisited. eds. Forsythe, David et. al. University of Nebraska Press. 1-21

8. These reservations are not stated to be in relation to Islam or Islamic law. It may be inferred that the choice of words, “religious or personal laws”, are not limited to Islam or Islamic law as applied in the Republic.

9. It has also reserved its interpretation to CEDAW Article 11 and interprets “the provisions of this article as a reference to the prohibition of discrimination on the basis of equality between men and women only”.

10. Article 3 (1) of the Federal Constitution of Malaysia.11. Its reservation is on CEDAW Article 29.12. There are political developments in Indonesia’s modern history resulting in the

‘compromise’ between so-called ‘Islamists’ and ‘Secularists’ on the Jakarta Charter issues. An-Naim, Abdullahi. 2008. Islam and the Secular State: Negotiating the Future of Sharia. Harvard University Press. Chap 6.

13. Azra, Ayzumardi, 2003. The Indonesian Marriage Law of 1974. In Sharia and Politics in Modern Indonesia. eds. Salim, Arskal et. al eds. ISEAS. Singapore. pp. 76-95 at 90.

14. These regions are Aceh, South Sulawesi, Cianjur, Tasikmalaya, Banten, West Sumatra and South Kalimantan. Salim, Arskal. 2003. Epilogue: Sharia in Indonesia’s Current Transition. In Sharia and Politics in Modern Indonesia. ibid. at p. 222

15. CEDAW 35th Session, 15 May-2 June, 2006. CEDAW/C/MYS/CO/2 para 14.16. CEDAW 39th Session, 23 July-10 August 2007. CEDAW/C/IDN/CO/5 para 3.;

Indonesian national law No. 11/2002 for example, grants the province of Aceh, the right to enforce Islamic tenets and law (Shariat Islam).

17. CEDAW 39th Session, 23 July-10 August 2007. CEDAW/C/SGP/CO/3 para 16. 18. An-Naim, Abdullahi, 2008. Islam and the Secular State: Negotiating the Future of

Sharia. Harvard: Harvard University Press at p. 112.


19. An-Naim, Abdullahi, 2005. Globalisation and Jurisprudence: An Islamic Law Perspective. Emory Law Journal. Vol 54. 25-51 at p. 33.

20. Kapur, Ratna. 2005. Erotic Justice: Law and the New Politics of Postcolonialism. The Glass House Press. London.

21. Hasso, Frances. (2009). Empowering Governmentalities Rather Than Women: The Arab Human Development Report 2005 and Western Development Logics. Int. J. Middle Eastern Studies. Vol 41. 63-82.

22. Kapur, Ratna. 2005. ibid.; Narayan, Uma. 1997. Dislocating Cultures: Identities, Traditions and Third World Feminisms. New York. Routledge.

23. These are Singapore, Thailand and the Philippines.24. Moosa, Ebrahim. 2006. Introduction. In Fazlur Rahman’s Revival and Reform in Islam.

ed. Moosa, Ebrahim. Oneworld Publications. Oxford. 1-29 at pp. 24-28.25. Hashemi, Nader. 2004. Change From Within. In Islam and the Challenge of Democracy

by Khaled Abou El Fadl. (book review) eds. Cohen, Joshua. et. al. Princeton University Press; An-Naim, Abdullahi. 1994. State Responsibility to Change Religious and Customary Laws. In Human Rights of Women. ed. Cook, Rebecca. University of Pennsylvania Press. 167-188.

26. Abu Hanifah (d 767), Malik (d. 795), al-Shafii (d. 820), Ibn Hanbal (d. 855) and founder of the main Shiah jurisprudence, Jaafar al-Sadiq (d. 765).

27. Charaad, Mounira. 2001. States and Women’s Rights: The Making of Postcolonial Tunisia, Algeria and Morocco. University of California Press. p. 45.

28. Offenhauser, Priscilla. 2005. Women in Islamic Societies: A Selected Review of Social Scientific Literature. The Library of Congress; Ahmed, Leila. 1992. Women and Gender in Islam: Historical Roots of a Modern Debate. Yale University Press.

29. Sachedina, Abdulaziz. 1999. Women Half-the-Man? Crisis of Male Epistemology in Islamic Jurisprudence. In Perspectives on Islamic Law, Justice and Society. ed. Khare, RS. New York. Rowland and Littlefield.

30. Attributed to Ibn Taymiya (d. 729 AD). Khadduri, Majid. 1984. ibid. at p 178.31. Ahmad, Salbiah. 1993. Muslim Personal Law: Some Reflections on Rights Mobilisation

in Malaysia. In Islam, Gender and Women’s Rights. Kuala Lumpur: Sisters in Islam. 7-13 at 9-10.

32. Hallaq, Wael. 1984. Was the Gate of Ijtihad Closed? 16 IJMES 3-41.33. Auda, Jasser. 2010. Maqasid Al-Shariah as Philosophy of Islamic Law. Islamic Book

Trust. Petaling Jaya, Malaysia. p. 164. 34. ibid. at 164.35. Sachedina, Abdulaziz. 1990. Women Half-the-Man? ibid.36. Ahmad, Salbiah. 2009. CEDAW Legislative Indicators on Islamic Law. Developed for

UNIFEM East and Southeast Asia. The consent of adult parties to the marriage is also a condition of a valid marriage in most Islamic family legislation in the region.

37. Ahmed, Leila. 1992. Women and Gender in Islam. ibid The author notes that the modern sensibilities of Aisyah’s recollections of her marriage and consummation do not


make the relationship more comprehensible. The relevant matter is not the sensibilities of the ages but the representation of facts of that age. p. 51

38. Auda, Jasser. 2010. ibid. at 202.39. This is a popular Tradition cited in all compilations of Prophetic Traditions. 40. Malaysia is a federal state and Islamic law is a matter on the state legislative list. There

are 13 state Islamic family enactments and one for the three federal territories. 41. Sachedina, Abdulaziz. 1999. ibid. 42. Ahmad, Salbiah. 2009. CEDAW Legislative Indicators on Islamic Law. ibid.43. Mohamed Ibrahim, Ahmad. 1965. The Legal Status of Muslims in Singapore. MLJ.

Singapore. This provision has survived as Section 96 (2) (3) of the Administration of Muslim Law Act, 1999 (Singapore).

44. Physical unfitness for conjugal relations is a ground of divorce for either party to a marriage.

45. Ahmad, Salbiah. 1990. Polygamy Applications in Singapore. Malaysian Law News. 594.46. These considerations are not provided in the Singapore AMLA, but are developed as

judicial precedents. In some of these decisions the new wife may be informed of her rights to seek dissolution of the polygamous marriage as she was not made aware of her husband’s marital status before the marriage.

47. There may be societal pressures against polygamous unions especially of community leaders as evidenced by the occasional negative media exposures of polygamous unions of political leadership in Malaysia and Indonesia.

48. Charaad, Mounira. 2001. ibid. at 213-227. The Majalla was not a response from any mass movement. It increased women’s options. It however retained the double share of males in inheritance.

49. Cockburn, Cynthia. 2001. The Gendered Dynamics of Armed Conflict. In Victims, Perpetrators or Actors; Gender, Armed Conflict and Political Violence. eds. Moser, Caroline et. al. Zed. London.

50. Peters, Rudd.1999. Islamic Law and Human Rights: a contribution to an on-going debate. Islam and Christian Relations. Vol. 1. no. 1. 5-14.

51. Auda, Jasser, ibid. at p. 165.52. Wadud, Amina. 2006. Inside the Gender Jihad: Women’s Reform in Islam. Oneworld

Publications at p. 205.53. Cockburn, Cynthia. ibid. at p. 15.54. Auda, Jasser. 2010. ibid. Chap 6.55. Wadud, Amina. 1992. Qur’an and Women. Kuala Lumpur. Fajar Bakti.56. ibid. at p. 3 and Chapters 1 and 2.57. ibid. at 62-74.58. ibid. at 17-23.59. Auda, Jasser. ibid. Chap 6.


60. ibid.61. The 1956 Tunisian Majalla kept the 2:1 formula intact despite sweeping changes to pre-

modern fiqh rules on family law. There are however several adoptions of Hanafi rulings on inheritance to favour grand-daughters to override the Maliki school preference. See Charaad, Mounira. 2001. ibid. at pp. 229-230.

62. Baderin, Mashood. 2003. International Human Rights and Islamic Law. Oxford University Press. At p. 146.

63. Article 86 KHI.64. Conversation with Sharia Judge, Ibu Rosmawardani of the Aceh Besar Syariah High

Court in 2008.65. An-Naim, Abdullahi. 2008. ibid. Chap 6; Hasyim, Syafiq. 2006. Understanding Women

in Islam: An Indonesian Perspective. Chap 8.66. Ahmad, Salbiah. 2009. CEDAW Legislative Indicators on Islam. ibid.67. Auda, Jasser. 2010. ibid. citing 20th century reformers at p. 7. Early genesis of maqasid

restricted it as a secondary principle in determining the public interest (maslaha). Maqasid theories can be traced to the 3rd century of Islam although its formation as a principle of interpretation was between the 5th-8th centuries of Islam.

68. Rashid Rida (d.1935 AD).69. Yusuf al-Qaradawi (1926).70. Auda, Jasser. 2010. ibid. at p. 25.71. ibid. including ‘suppression of the herd mentality’ and ‘avoiding brain drain’. at p. 22.72. Hasyim, Syafiq. 2006. ibid. at pp. 187-190.73. Auda, Jasser. 2010. ibid. at pp. 228-229. 74. ibid. at pp 232-233.75. UNIFEM. 2004. CEDAW: Restoring Rights to Women. Partners for Law and Devt.

Delhi. Text by Mehra, Madhu et. al. at p. 28.76. Article 80 of the 1991 Indonesian KHI sets out the “responsibility of the husband”.

Article 83 sets out the “obligation of the wife”. 77. A re-reading of the Qur’anic worldview challenges this notion of nusyuz of women as

disobedience to the husband. Ahmad, Salbiah. 2009. CEDAW Legislative Indicators on Islamic Law. ibid.

78. Article 83 (4) of the 1991 Indonesian KHI requires a complaint of the wife’s nusyuz to be “proved with legal evidences”.

79. Wadud, Amina. 1992. ibid. at pp. 88-89. Mernissi, Fatima. 1991. Women and Islam: A Historical and Theological Inquiry. Basil Blackwell. Oxford pp. 49-61.

80. Singapore NGOs in the NGO report to the CEDAW Committee stated that the Singapore AMLA discriminates women for purposes of Article 2 (f) to CEDAW by making “polygamy available only to men and not to women”. AWARE. 2007. CEDAW shadow report for the 39th session (2007). p.11.


81. Falk, Richard. 1992. Cultural Foundations for Protection of Human Rights. In Human Rights in Cross-Cultural Perspectives: A Quest for Consensus. ed. A-Naim, Abdullahi. University of Pennsylvania Press.

82. An-Naim, Abdullahi. 1990. Problems of Universal Cultural Legitimacy for Human Rights. In Human Rights in Africa: Cross Cultural Perspectives. eds. An-Naim et. al. The Brookings Institution. Washington DC 331-367.

83. Wahid, Marzuki. 2008. Counter Legal Draft (CLD-KHI) from the Perspective of Politics of Law in Indonesia. http://english.pta-yogyakarta.go.id/artikel/lawarticles/260-counter-legal-draft-kompilasi-hukum-islam.html.

84. That is a hasan talaq, one that is effected with the least injury to the wife. A triple talaq pronounced all at once or in succession is an irrevocable divorce.

85. The Islamist groups and human rights based groups had varied responses to the CLD-KHI. Both groups were split in their support. The Islamist groups were mainly those who have proposed for the full implementation of Islamic law. Wahid, Marzuki. 2008 ibid. at p. 61.

86. Referred to by the CEDAW Committee. CEDAW 39th session. 23 July-10 August 2007. CEDAW/C/IDN/CO/5 para.11.

87. Malaysia has made some attempts in eliminating discriminatory provisions in its civil laws on maternity and parental leave, sexual harassment at the workplace, and working towards recruitment of more women in managerial and professional positions to the public service. In February 2010, Malaysia for the first time since independence in 1957, recruited two women to the Sharia Court bench in the federal territories.

88. Ahmad, Salbiah. 2009. CEDAW Legislative Indicators. ibid. As an incremental change, the divorce by mutual consent should not displace the pre-modern divorce options for women. It is included to expand women’s choices.

89. The members to the Council of Europe maintain their sovereignty and cooperate on the basis of common values and political decisions.

90. Brems, Eva. 2003. The Margin of Appreciation Doctrine of the European Court of Human Rights: Accommodating Diversity Within Europe. In Human Rights and Diversity: Area Studies Revisited. eds. Forsythe, David. et. al. University of Nebraska Press. pp. 81-110.

91. ibid at p. 106. 92. ESCR 5th Session, December 14, 1990. General Comment 3 para. 10 on the nature of

States parties’ obligations in Art 2 (1).

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