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Women as Judges (Only available in SIS Resource Centre)
Paperback, 2001, 20 pp. (Download here)

The appointment of women as judges in Muslim countries remains a controversial issue, due to a general perception that such appointments might not be in conformity with the Syariah. There is a dual legal system in Malaysia, which is divided into the general civil courts and the Syariah Courts. The Syariah Courts have jurisdiction only over persons who are Muslims and its main area of jurisdiction is in the area of family law. For over twenty years, Malaysian women have been appointed to serve as judges in the general civil courts, with the proviso that women judges in the High Courts should only hear civil cases and not criminal cases as criminal cases that are tried in the High Courts are cases that involve capital punishment.

On the other hand, women magistrates and women judges in the sessions courts can hear both civil and criminal cases, as the subordinate courts do not have jurisdiction over capital punishment. However, no woman has yet been appointed to serve as a judge in the Syariah Courts. During the past decade, Sisters in Islam (SIS) and other women's groups have pushed for the appointment of women as judges in the Syariah Courts as well. To counter objections alleging that such appointments would be contrary to the Syariah, SIS has embarked on a research project to put forward the following arguments in support of the appointment of woman as Syariah Court judges.

Juristic Views

The majority view (jumhur) among the founding jurists (mujtahid mutlaq) of Imam Shafii, Malik and Ibn Hanbal regarded women as being disqualified as judges based on an interpretation of Surah an-Nisa' 4:34, that men are qawwamuna (protectors) over women. The minority view of Imam Abu Hanifah, however, opined that the authority of a judge is not valid unless he possesses the qualifications necessary for a witness. Thus this opinion allows women to be judges in all cases except hudud and qisas cases. This flows from Imam Abu Hanifah's interpretation of Surah al-Baqarah 2:282, on women's eligibility to be witnesses in commercial transactions.

There were also the individual views of other jurists such as al-Tabari and Ibn Hazm which stated that a woman can be a judge in all cases without exception as long as she fulfils the requirements for the position. This would also appear to flow from a reading of Surah al-Taubah 9:71, that believing men and women are each other's awliyya (protecting friends and guardians).

As Muslims, we believe in the revealed nature of the textual sources of the Qur'an, and the authentic Sunnah of the Prophet (saw). The latter source is divinely inspired. There is no clear nass in the textual sources allowing or disallowing women to be leaders or to be appointed as judges. The current views on these two issues are juristic interpretations of several textual sources.