Sunday, July 24, 2011

Women As Judges in Muslim Jurisdiction: Part One

Women As Judges in Muslim Jurisdiction

I am thrilled that our Syariah Family Court now has appointed women as judges, finally. Before this, other women groups including Sisters In Islam have pushed for the appointment of women as Judges in the Syariah Family Court. In Malaysia’s dual legal system, Malaysian women have been appointed to serve as judges in the civil courts – in the High Courts the 80’s and in the lower courts since the 60’s.

The Syariah Courts have jurisdiction over Muslim and family law is the main area of jurisdiction. The appointment of women judges in Muslim countries remains a controversial issue, due to a general perception that such appointment might not be in conformity with the shariah. There is no clear nass or authority in the textual sources example the Quran and the authentic Sunnah of the Prophet (s.a.w) that allows or disallows women to be appointed as judges. Several juristic interpretations of these sources discriminate against women, going against the spirit of Gender Equality. There are various examples of the participation of women throughout Muslim history that support the view that women are capable of becoming leaders (judges)

During Prophet (s.a.w) and the rightly-guided Caliphs.

Women Companions of the Prophet (s.a.w) were not confined to their homes. They participated in all profession and took part in activities ranging from politics to religion. Some were very accomplished and sought after for consultation and lived independently. It was only much later that women came to be confined to the home and people generally began to believe that their main role in life was to bear children and to do housework.

For instance, it is a well-established historical fact that the Prophet consulted Salma (r.a) on the occasion of the Treaty of Hudaybiya.

During the battle of Uhud, women including the Prophet’s wives actively helped the wounded. The women participated freely in the affairs of war and some even participated in actual combat.

Aishah r.a has been known to have corrected Abu Hurairah with regards to traditions that were in conflict with the Quran. She was consulted on her knowledge of the Sunnah by the believers.

During the other periods in Muslim history.

Hurrah Malikah Arwa’ bint Ahmad headed the administration of the province of Yemen on behalf of the Fatimid Calioh of Egypt. Three of Fatimid Caliphs, Mastansir, Must’ali and Amir, reposed faith in her and gave her a free hand to govern Yemen. She was held in high esteem by all three. The last of the three Calips, Amir even appointed her hujjah (the highest religious office under the Fatimid hierarchy.)

Any references in the Qur’an to accomplished women during the periods of the earlier Prophets?

The Qur’an itself has a special category of women who performed unique function from the perspective of the Qur’an and humanity. As per mentioned in Surah al-Baqarah 2:35, Surah an-nisa 4:1, Surah Al-A’raf 7:19-23

Maryam (Mary) mother of Prophet Isa (Jesus) a.s. were mentioned in Surah al-Imran 3:6 and 37, Surah Maryam 19:16-34, Surah al-Tahrim 66:12. She was classified as “one of the qanitin”, as per mentioned in Surah 66:12 a word that uses the masculine plural form to indicate one devout to Allah. There is no reason not to use the feminine plural form qanitat, except to emphasize that the significance of Maryam’s example is for all who believe, regardless of gender.

Balqis, Queen of Sheba, in surah 27:23-44. The Qur’anic story of Balqis celebrates both her political and religious wisdom. The Queen’s wisdom in politics is demonstrated by her recognition that the letter from Prophet Sulaiman (Solomon) a.s. was “worthy of respect”, (Surah Naml 27:30) and her religious wisdom is demonstrated in her submission in Islam with Sulaiman. (Surah Naml 27:44)

Socio-historical circumstances and female participation

In having the clearer perspective on the historical position of women in Muslim civilization, comparison with the historical position of women in Western civilization can be made. Socio-historical circumstances in the past tent to limit women’s role in almost all society both in the West as well in the East.

Many thought that Muslim advocates of women’s right are being westernized or influence by the West yet it is the original Islamic teachings which upgraded the status of women and rescued them from operation and injustice suffered in pre-Islamic Arabia and various other historical civilisations.

Historical Background of Women’s Rights in The Western World?

On family Law, reforms in favour of women only began to take place in the latter half of the 19th century. Under English Common Law, a wife had no capacity to hold property in her own name and everything she posses become her husband’s after marriage. The act of Parliament which begin to altering the common law position to allow married women to own property was only in acted in 1882 (The Married Women’s Property Act 1882).

Under the civil law, a married women was also denied direct access to the courts as she was incapable of suing or being sued in her own name. She could only sue and be sued through her husband. Law reform in the 20th century brought about statutes such as the married Women and Tortfeaser Act 1935, declaring that a married women was capable of suing of being sued.

In 1928, the age of women voters lowered to 21 to place them on an equal footing with male voters thanks to the Women’s Social and Political union (was formed in 1903) and women activists known as “Suffragettes”. The idea of women’s suffrage in Great Britain is to have the right to vote in parliamentary elections was not taken seriously until the early years of the 20th century.

The suffragettes held public demonstration and fought hard for voting rights. The government attempted to suppress the movement the movement by arresting and imprisoning the suffragettes on charge of disturbing the peace. However, at the outbreak of the First World War in 1914, these women leaders called off the suffrage campaign and offered their services to the government in the war effort.

The government then released all suffragette prisoners and the women activist devoted their efforts to aiding the national cause, especially by working in military hospitals, ammunitions, factories and farms. Toward the end of the war in 1918, the Representation of the People Act gave the vote to a limited numbers of women and because 1918 Act, women voters of the aged 30 and above can vote.

Muslim jurist stand on the issue of women’s judicial capacity.

Arguments in the medieval Islamic legal discourse that sought to locate the source of gender-based distinction against women not within the biological nature of women but in specific social circumstances. These include women’s marginalization in political context and the role that women played within those social circumstances.

A witness’s testimonial and a judge’s verdict are both political because the consequences of each are immediate, tangible and binding. However, as noted by al-Qarafi, courts faced difficulties in enforcing the law. More generally, men (including him) in 13th century Egyption society viewed women as being inferior to men. Therefore, is a greater likelihood that the losing party will not respect a court decision involving woman judge or witness.

If in the society where men would respect the decisions of the court and comply with court verdict regardless of the gender of the witnesses or the judges, there is no reason to exclude qualified women from being appointed as judges.

*sources: Women as Judges /by Nik Noraini Nik Badlishah & Yasmin Masidi.

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