Domestic Violence Act and Conflict of Jurisdiction
18 May 1996

In reference to the letter from Dr Rahmah Hashim, the Head of the Women's Affairs Bureau of the Muslim Youth Movement of Malaysia (NST 11 May 1996), we would like to make the following statement: The current opposition to the Domestic Violence Act 1994 (DVA) seems to be centred over the question of a conflict of jurisdiction between Syariah and Civil courts.

It has been stated often enough that domestic violence is not a family matter, but a crime. A conflict of jurisdiction therefore does not arise as a crime against persons is appropriately dealt with under the Penal Code which is a Federal Law, administered by the Civil courts of our country. (Sisters in Islam, NST 16 March 1996). To stretch the logic of those who oppose the application of the DVA to Muslims is to say that murder and rape of family members are just family matters and therefore should fall within the jurisdiction of the Islamic Family Law of each state. We are concerned that the preoccupation with jurisdiction has clouded the real issue we have to address here: the need to provide adequate redress for victims of violence which was not addressed by our legal system.

The campaign for a DVA was to address the inadequacies and injustice women suffered in their search for redress in the existing system, both Civil and Syariah. The campaign for one law to apply to all Malaysians arose out of the experience of women who have sought refuge, counselling and assistance from crisis centres and hotlines operated by various groups in the country, in particular in Kuala Lumpur and Penang. The DVA is a significant achievement as it is one of the few pieces of legislation where a process of consultation and negotiation had involved both the state and victims of violence and their support groups.

The campaign for a DVA began in 1985 and the negotiation for the legislation, which began in 1989, took five long years, not least because all issues over conflict of jurisdiction had to be meticulously considered by all those involved. We agree that the need to upgrade the status of the Syariah courts and improve the administration of Islamic law in the country is long overdue. However, the debate over conflict of jurisdiction between Civil and Syariah courts and the move to enhance the powers of the Syariah courts should be a separate debate from the implementation of the DVA. The DVA and Muslim women should not be turned into victims, yet again, in this battle over turf. We do not believe that the Civil courts, in their dispensation of justice, are any less Islamic.

Placing the DVA under the Civil courts does not reduce the importance of the Syariah system. That is not the issue here. Instead, what we are most concerned about is the critical problem of domestic violence that needs to be addressed immediately. Now that we have in our hands the instrument to do so, there should not be any more delays in implementing this long awaited legislation. Those who work with Muslim women in crisis are confronted by a litany of complaints from women seeking redress in the Syariah court system.

While we acknowlege that not all court officials and religious departments are unfair or insensitive to women's problems, the overwhelming picture that has emerged from these long-held complaints is that women are often denied access to the rights and justice already granted to them in the state enactments because of entrenched prejudices in the implementation of the law. In numerous cases handled by the refuge and crisis centres, in research done, and in stories told, battered Muslim women report that religious officials often advise them to "go home and be patient" when they file a complaint of domestic violence.

Many have been told, too, that it is a sin for a Muslim woman to ask for divorce, this, in spite of several grounds for divorce that are granted to women under the syariah laws. They suffer long and uncertain delays in their search for redress within the system. They suffer humiliation and fear in their dealings with religious officials who are legally and spiritually bound to dispense justice. In the worst scenarios, some Muslim women, out of desperation, have considered apostasising to qualify themselves to seek redress in the Civil courts - thus exposing themselves to the charge of apostasy under state Syariah laws.

We therefore urge that the move to enhance and increase the jurisdiction of the Syariah court should not be confined only to the technicalities of law. Neither should the discussion and decision-making be confined only to those in the rarified preserve of academia, religious authority and legal fraternity. The overriding consideration in any such move must be justice. How can the rule of Syariah law provide justice to those it is meant to serve? We therefore urge that the move to enhance and increase the jurisdiction of the Syariah court should not be confined only to the technicalities of law. Neither should the discussion and decision-making be confined only to those in the rarified preserve of academia, religious authority and legal fraternity. The overriding consideration in any such move must be justice. How can the rule of Syariah law provide justice to those it is meant to serve?

We strongly support Dr Rahmah's call for the Syariah courts to be centralised under one federal system to provide for a uniform and systematic implementation of Islamic law. This call has already been made by many in authority, including the Prime Minister, the Director-General of Pusat Islam and the Director-General of IKIM. We hope the federal Government will now find the political will to implement this immediately as the first step in providing the ummah with one standard of justice.

Sisters In Islam