Promoting an understanding of Islam that recognises the principles of
justice, equality, freedom, and dignity within a democratic nation state

Ignorance giving rise to discrimination - The Star - Musings
email to someone printer friendly

Much of the tension that we experience today is because of the mistrust we have for one another and also because those who have more cannot find it in their hearts to be fair to those who do not have as much.

IN THE women’s rights work that I do, the foundation of my colleagues’ and my belief regarding our rights is that there can be no justice without equality.

Where that applies to women, it’s called feminism, but it can equally apply to any oppressed group we know of.

Basically, we cannot be just to anyone if we don’t think of them as our equals.
Cry freedom: Thousands of Egyptians waving their national flag to celebrate the success of their revolution in Tahrir Square. Their success had inspired many around the Arab region to try to liberate their countries from tyranny and oppression. — AFP

If we don’t think some people are equal because of their sex, class, race, religion, sexual orientation, nationality, ability or age, then it would be very hard to be truly just to them.

We find it hard to compare them to ourselves, and, therefore, as deserving as ourselves of whatever rights and opportunities there are.

This is sometimes why we are in awe when people “cross barriers” to help someone outside their usual circles, like when Princess Diana visited people with HIV. I

t was just so unusual, that it proved the rule. Hence, we are neglectful of people who are different from us, or worse, discriminatory.

Often this comes from ignorance. There are some of us who grow up simply unable to fathom lives different from ours.

But it can also be willful and deliberate. Much of the tension that we are experiencing today is because of the mistrust we have for one another, because those of us who have more cannot find it in our hearts to be fair and just to those who do not have as much.

Worse still, we find ways to justify why we have to behave that way. We have come to a point in our nation’s life where we really have to think about where we are headed.

A
re we going to perpetually think of ourselves as so exceptional and different from everyone else that we don’t have to meet normal human standards?

Do we have to be so defensive that we only see what we want and are blind to any other point of view?

Today, I read about some people who objected when a non-Muslim began his speech with the traditional Muslim greeting of peace. Apparently, this was considered offensive because it was sensitive.

Honestly, this is the sort of thing that makes me want to give up on this country, that there are idiots who have the temerity to call themselves leaders at all. As any child knows, assalamualaikum means “peace be with you”.

It is the most benign and civil of greetings, welcoming and warm. If meant sincerely, it means that you have come in peace and wish to conduct yourself in a peaceful way.

In the Arab world, everybody uses this greeting. They certainly never, as Malaysians did at one time, differentiate between who they could say it to, and whom they couldn’t.

It is not a greeting patented by Muslims or owned by God. So, intelligent right-thinking Mus­lims should be very welcoming when a non-Muslim uses it because it means they have come in peace. And you can hold them to that.

So why make war out of it? How come when President Barack Obama used the same greeting when he went to Indonesia, the largest Muslim country in the world, nobody objected?

Why, if he went to Penang and did the same thing, no doubt there would be appreciative applause and pleased shuffling, too.

I don’t know what world we live in that we think we are so special that nobody can hold a candle to us.

We look in distaste when Arabs protest, but when we see that it’s peaceful, we say that they must be mature people, unlike we here who are so incapable of protesting peacefully that we need to be censured before we even step out of our homes.

Students and young people around the Arab region are liberating their countries from tyranny and oppression, and ours are deemed too untrustworthy to even talk about politics.

The image we seemingly want to present to the world is one of gross intolerance of anything that doesn’t fit into the small narrow hole we call Malaysian.

At the same time, we seem to be proud of our immaturity.

Do we actually tell foreigners that our students are too immature to be trusted to discuss politics?

And we’re proud of it? How do we explain to puzzled foreigners, including Arabs who actually speak the language, that we think some of their words are exclusive to us only?

Right now, the coolest nationality to be is Egyptian.

It means young, democratic, inclusive and free.

In Wisconsin, where people are protesting against a state government that is taking away their union rights, there are signs that say “Fight like an Egyptian”. Imagine that.

When will the rest of the world want to be Malaysian?

Note: No reproduction of this article is allowed without the author's consent.
Let’s adore our beloveds daily - The Star - Musings
email to someone printer friendly


Unless prompted, most of us forget about romance in our lives. Everybody needs some, and there is no need to restrict it to only a certain day in the year.

WE often bemoan the intense politicking between our political parties where neither side will ever agree with whatever the other side says.
But occasionally there is bi-partisan cooperation on issues. Unsurprisingly they cooperate on sin. Or, anti-sin if you like.

Recently, the Youth wing of PAS announced that Muslims should not celebrate Valentine’s Day and instead lead a sin-free life.

Not long after, the government department Jakim announced that it would launch an anti-Valentine’s Day campaign to persuade Muslims to lead a life sans sin.

First of all, wouldn’t it be nice if we could all lead lives without any sin at all? Why, this would obviate the need for Judgment Day, and even heaven and hell.

We would all live our lives never telling a single lie, never betraying friends and family, never asking for payola or paying off anyone to get something.

I don’t recall ever a time in history where people lived in such bliss but I suppose we should not stop hoping.

Secondly, there are certainly 365 days a year (less in a Muslim year) to both commit sins or not to, so it hardly seems efficient to concentrate so much time, energy and effort on just one.

Why, if I were a smart sinner, I’d just postpone my romantic dinner with my husband by one day. Although I still don’t understand why going on a date with my husband should be considered a sin. I thought that was why I signed on the dotted line.

Isn’t that why we encourage young girls to sign up for marriage, so that they would stop sinning, the little hussies? So the dating would become kosher?

I do agree, however, that we should not focus all our passion on our loved one (or several) on just one day in a year.

We should instead spread it out so that our beloveds feel adored every day. That is, if they don’t feel smothered instead.

Perhaps our problem is that, unless prompted, most of us forget about romance in our lives.

Everybody needs some, and why restrict it to certain days in the year?

Instead of having an anti-Valentine’s Day campaign, I propose that Jakim (and PAS, too, if they’d like to) do a year-long one on love.

The campaign could have some catchy name, like “How Do I love Thee, Let Me Count the Ways” (and there should be at least 365 romantic ideas).

Or, “What’s Love Got To Do With It? Romancing the Halal Way.”

Or, in tune with our current government slogan, “1Love.” This however might be problematic for those who may have more than one beloved in their lives.

But campaign slogans may not be enough, especially when people don’t understand what they actually stand for. What we therefore need are role models. People whom everyone can look up to as fine examples of perfect halal sin-free love.

In this case, who would be better suited for these roles than our religious leaders themselves?

Presumably they all have wives they love. Therefore they should lead these campaigns by giving talks on how they express their love for their wives.

Every single day, of course. It would be instructive for the rest of us, not to mention rivetting.

I’d love to know how PAS youth make their women feel special. Do they compliment them on their looks, or on their cooking skills? For those with wives who work outside the home, do they take them out for a celebratory meal (and thus give them a day off from the kitchen) when they get promoted?

How do Jakim officers fete their wives? On birthdays and anniversaries, what do they give their lovies? Since sexiness by one’s spouse is very much allowed, do they shop the Victoria’s Secret catalogue for risqué undies? Apparently it’s well documented that apart from diamond rings, sexy undies always work.

Lest anyone think I’m mocking anyone, I am dead serious. You can’t take away a fun activity like Valentine’s Day without giving a suitable alternative.

It is simply not enough to say that since Valentine’s Day leads to sin, you must just do something unsinful. There needs to be more pro-active ideas than that.

Give examples of unsinful things a loving couple could get up to, especially if they are married. What would be suitable replacements for a bouquet of roses, a box of chocolates or a teddy bear, for example? And where would be good dinner venues, those with presumably bright lights and religious music?

And what advice would they give on how to douse passions that such evenings might arouse?

All of us long-time marrieds are waiting with bated breath. After all we want to go to heaven, too.
Beware wave for rights - The Star - Sharing the Nation
email to someone printer friendly


It behoves on governments and their religious apparatus to watch current developments in the Arab world closely.

I WENT to Egypt for the first time in 1981 and promptly fell in love with the country and its people. Until then, I thought I had never encountered the same warmth, generosity and hospitality as Malaysians had to offer.

And there, everyone, including strangers you just met, wanted you to visit their home, their farm, their village.

They were proud of their history and their country – and wanted to feed you endlessly. I have been back several times since for holidays and meetings.

However, by my last visit at the end of 2009, I felt the country was ripe for a revolution.

Decades of oppression, corruption and misrule had turned the once warm, proud people I met into angry, hardened individuals.

My Egyptian friend would turn on the radio to listen to the news every morning and instinctively say, “I hope Hosni Mubarak is dead.” I saw loud quarrels daily in the streets, whether it was in Cairo, Luxor or Aswan.

Taxi drivers, camel, donkey and horse cart drivers fought with each other over who stole whose customers.


One voice: The uprising in Egypt is not led by manic men in beards and faceless women in black. Arabs from all walks of life are revolting against their despotic rulers. The only flags flying are national flags.

The “illegal” guides and touts at tourist sites cheated tourists blind as they left them stranded in the middle of the hot sands of the Pyramids, unless they were paid double for the ride back on their camels.

Turned out the payment that had been negotiated before the journey had just been for a one-way trip.

And God forbid if you met the eye of a man trying to sell you postcards or plastic copies of the Sphinx or the Pyramids; he would not let you get away until you bought something. I

n the end, I rationalised that they all needed the money more than I did and just gave in each time.

But my last straw of patience was broken when I was trying to find transport between the domestic terminal to the international terminal in Cairo to catch my flight home.

I was sent on a merry-go-round to find my way out of the building and to the right bus stop.

Even then I had to change buses to make that 10-minute trip! When I finally boarded the right bus to the international terminal, I announced in exasperation to the passengers, “You need a new government.”

Those who could understand English stared at me for a moment and then turned to each other in hushed discussion. A government that pays no attention to the basic needs of its people, and not even to the goose that lays its golden egg, will come to its inevitable end.

My Egyptian friends are not the only ones who are excited and passionate about this historic moment to topple a 30-year-old dictatorship: so are democrats in the Muslim world as we chat, tweet, blog and e-mail each other.

Finally, the democracy wave that swept Latin America and Africa is hitting the Arab world. And how significant that will be to the rest of the Muslim world.

Even though only about 20% of Muslims live in Arab lands, too many among us who live on supposedly the periphery of the Muslim world still look upon the Arab world as everything that is authentically Muslim.

We, in the supposed periphery, who have kept Islam alive for centuries by our ability to adapt the practice and understanding of the faith to our cultural particularities were suddenly told that the way we practised Islam – a kinder and gentler way – was “unIslamic”. I

t was jahilliyah – ignorant Islam. Now that we knew what “true” Islam was, we needed to follow its authentic ways.

So our sarong kebaya, selendang, and even baju kurung were all not Islamic enough. We must now don the long loose jubah that hides our shape.

And to please God more, we have to make it in solid black, navy blue or brown. Our mak yong, wayang kulit and mandi putri were banned for all their syirik (placing an entity on the same level as God) elements.

Suddenly, hundreds of years of culture and tradition of the Malay archipelago, which had absorbed the influences of great world civilisations, were pronounced unIslamic.

Never mind that we have become the poorer for it – as long as we are “authentically” Muslim.

The political Islam that developed within the geo-political context of the conflicts and competition of the Middle Eastern world became our struggle and our burden.

In the race to be “authentically” Muslim, we adopt laws that discriminate against women so that we can be more like the “authentic” Saudis.

We segregate men and women; we can no longer shake hands with those of the opposite sex; we forbid Muslims from greeting friends of other faiths on their festive occasions; and we justify child marriage in the name of Islam.

Never mind all the evidence of the harm it causes to the child bride.

While those who wish for the status quo to remain in the Arab world push away the spectre of the Muslim Brotherhood and political Islamists coming to power in place of the despotic allies of the United States, my Arab friends are at pains to point out that what is happening in the streets of Tunisia, Egypt, Jordan, Yemen, and Sudan is a people’s uprising, in particular the revolution of the young, people with “no job, no money and no freedom”, as the Egyptian columnist Mona Eltahawy said.

They form 60% of the population in the Arab world; and they could have been a source of growth and wealth or a source of violence and instability, Arab development reports had warned for long.

My Arab friends are of course burgeoning with pride and confidence that what will eventually emerge in Egypt and Tunisia will be democratic governments.

The hundreds of thousands of people out in the streets in the Arab world are not demanding an Islamic state and Shariah law, they pointed out. The uprising is not led by manic men in beards and faceless, joyless women in black.

Arabs from all political persuasions and all walks of life are revolting against their despotic rulers. The only flags flying are national flags.

While the Islamist movement in both countries remain the largest political force, and there is worry that they might step into any political vacuum and commandeer power, this is not the world of 1979.

Back then, the Iranian revolution which had brought diverse social and political forces together was hijacked by the Islamists and transformed into an Islamic revolution. Thirty-two years of Islamic rule has not brought Iran the social justice, democracy, and freedom the people yearned for.

A despotic monarchy was replaced by a despotic theocratic rule.

In the 21st century, Muslims have seen the failure of the Islamic state experiment in Iran, Sudan and Afghanistan after the overthrow of secular regimes.

The return of Rashid Al-Ghannouchi, the 69-year-old leader of the Tunisian Islamist movement Al-Nahda, after a long exile in London is not the return of a Khomeini ready to impose vilayet-e-faqih, rule of the jurisconsult as God’s representative on earth.

In interviews, he has rejected this notion and criticised the Egyptian Muslim Brotherhood for its party position that an Ulama Council should supervise Parliament as in Iran where the all-powerful Guardian Council must approve all bills passed and has the power of veto if it considers them inconsistent with the Constitution and the Shariah. He also criticised the Muslim Brotherhood’s position against Copts and women running for the presidency.

Instead, he sees the AKP in Turkey (Justice and Development Party) as a model to follow, and the Scandinavian socio-economic model as the closest to his Islamic vision.

He believes in democracy and calls on Islamists to relinquish their ambition to monopolise Islam and impose a single, all-powerful interpretation which has proven to be inherently unstable and temporary, he said.

In the end, the proof of the pudding of course must be in the eating, but Ghannouchi is wise and strategic enough to capture the imagination and the mood of the times.

And the times have indeed changed. It behoves on the Malaysian Government and its religious apparatus on the one hand and Pakatan Rakyat and its PAS allies on the other to watch the developments in the Arab world closely.

As the revolt spreads in the Arab world and the democracy movement digs roots in that region, we might just find ourselves falling from the much-touted model modern Muslim state to an intolerant autocratic state where religion, race and gender become increasingly entrenched as the basis of citizenship and exercise of rights.
Winds of change beckon in Egypt - The Star - Musings
email to someone printer friendly


It started in Tunisia and has now spread to Egypt. People are revolting against longstanding leaders who have ruled with iron fists and lived in opulence while the masses suffer with soaring unemployment and a rising cost of living.

WHOEVER said the Year of the Rabbit would be a gentle one? In Tunisia, a small act of desperation literally sparked off historic changes.

A young man called Mohamad Bouazizi, educated but only able to earn a living selling fruit and vegetables at an illegal stall, set himself on fire after the authorities confiscated it.

Mohamad symbolised all the young and disenfranchised in Tunisia, frustrated by the huge gap between them and the extremely wealthy elite, and thus sparked large protests. In less than a month, the much-hated President and his family were out and Tunisia is now in the throes of transition to a new government, the shape of which nobody quite knows yet.

Whatever it becomes, Tunisia’s people revolt had inspired others. Smaller protests started to spring up in Algeria, Jordan and Yemen.

And then Egypt, with the largest population in the Middle East – 80 million, suddenly caught fire. We have to realise that people don’t revolt just to be trendy.

The Middle East has been ripe for this for a long time. Long-standing leaders rule them with iron hands, rigging votes as well as disallowing their people of much freedom. Some use religion as the basis for such repression.

But such leaders can slowly go blind and deaf. Many of them fail to notice that their population, which comprise the younger generation mostly, are the ones who are facing a desperate unemployment situation.

According to the International Labour Organisation, the Middle East and North Africa (MENA) region has the worst unemployment problem in the world.

In Egypt, 58% of the population is under 25 years old.

In 2003 it had the highest unemployment rate in the world, at 25.6%, and there is an additional 500,000 unemployed each year. Across the Arab world, the unemployment rate stands at 20%.

This translates to 22 million people, out of which 60% are youth. Much of this unemployment is attributed to the failure of most Arab countries to link education to the needs of the job market.

As we can see from the events in Egypt right now, nothing could be more dangerous for leaders than to educate young people for jobs that do not exist.

Couple that with a failing economy which depletes people’s already low standards of living and a refusal to address those issues, then you provide kindling dry enough to be set alight with any match. And it doesn’t even have to be an internal one.

This should be a lesson for leaders everywhere. More than anything, people’s dignity and self-respect is important. In this light, a job and the ability to provide for one’s family is part of that personal dignity.

When people are unemployed, it is not because they are lazy and choosy. It is because there are no jobs or none that matches their educational attainments.

How humiliating it is to be forced, like Mohamad Bouazizi, to take a job selling vegetables in a market when you are an educated person.

But only leaders who are willing to listen to people will understand the need for such dignity.

If at the same time, a leader is seen as not only unwilling to listen but also greedy and corrupt, living in unashamed opulence as Tunisia’s former President and his wife did while his people had so little, then there will come a time when the patience of the people will run out.

Malaysians may shake their heads at the riots in Egypt. But it has to be understood that the desperation and frustration of Egyptians far exceeds anything we have ever known.

And after brutal repression all these years, to go out on the streets to demand a return of their dignity is an act of courage which we rarely have to show. Egyptians and their Arab counterparts are not scared of dying to gain freedom.

That is what’s frightening every single leader across the region now. Especially since even the police and army, crucial to maintaining power, are also rebelling.

I am appalled at the silence on our side at this historic moment, apart from ensuring our students are safe.

Indeed, most world leaders have been caught off-guard and dumbfounded by this. Some big powers are even trying to hedge their bets, not quite supporting their old friends while trying to encourage the people’s revolt.

After all, they had been supporting undemocratic regimes and now democracy has a chance to bloom without their help at all.

And the countries they have invaded for the sake of “democracy” are not doing that well either.

We should watch closely this historic moment in the MENA and learn the many lessons from there.

And let us never think that such a revolution can’t happen here.

As MENA leaders are finding, never be foolish enough to say never.

Gong Xi Fa Cai!
Hak Suami dan Isteri dalam Harta Sepencarian
email to someone printer friendly

Soalan :

Keputusan cerai antara saya dan bekas isteri telah di sahkan oleh Mahkamah Syariah di sini. Salah seorang Pegawai Sulh telah menyarankan bahawa saya dan bekas isteri untuk menjalani kaedah Sulh dalam menyelesaikan tuntutan bersama yang dipohon oleh kami. Antara tuntutan yang dituntut ialah harta sepencarian, nafkah dan hak penjagaan anak-anak kami. Namun begitu, bekas isteri menyatakan saya tidak ada hak langsung dalam menuntut harta sepencarian. Adakah perkara ini benar? Dan bukan niat saya untuk lepas tanggugjawab terhadap bekas isteri dan anak-anak. Saya hanya perlukan kepastian. Semoga jawapan yang diberi dapat dikongsi bersama dengan pembaca yang lain terutamanya para suami. Tolong beri penjelasan kepada saya.

Zulkamal
Seksyen 13, Shah Alam

Jawapan :

Perkahwinan boleh dianggap sebagai satu usahasama antara suami dan isteri. Namun, ada rumahtangga yang dibina bermasalah dan tidak berpanjangan. Masalah ini boleh timbul daripada pelbagai punca sama ada disebabkan faktor keadaan atau kesesuaian dalam menyempurnakan tanggungjawab dan peranan masing-masing.

Walaupun perkahwinan tersebut putus di tengah jalan, Islam sebagai agama yang adil telah menetapkan hak-hak yang wajib dituntut atau diterima bagi mengimbangi kehidupan hamba-hambanya. Hak-hak yang dimaksudkan khususnya selepas sesuatu penceraian adalah seperti harta sepencarian, nafkah iddah isteri, mutaah, nafkah anak-anak, hak penjagaan anak dan lain-lain.

Isu mengenai harta isteri dan harta suami masih lagi tidak jelas kedudukannya lebih-lebih lagi dalam hal pembahagian harta sepencarian. Secara amnya, harta sepencarian pada asalnya diambil daripada adat resam Melayu yang telah diterimapakai oleh masyarakat setempat. Penerimaan adat resam ini menurut perspektif Islam menyatakan bahawa apabila sesuatu adat atau uruf diakui kebaikannya dan telah diberi pengiktirafan undang-undang, kedudukannya tidak lagi sebagai adat, tetapi telah menjadi suatu peraturan atau perundangan yang mesti diikuti dan dikuatkuasakan. 

Harta sepencarian berdasarkan Hukum Syara’ ditafsirkan sebagai pemerolehan harta sepanjang tempoh perkahwinan sama ada membabitkan harta alih atau tak alih dan pihak yang memberi sumbangan sama ada secara langsung atau tidak langsung.  Maka, pembahagian harta sepencarian menunjukkan pengiktirafan Syara’ terhadap hak, habuan dan pemilikan pihak berusaha mendapatkan harta itu sepanjang perkahwinan. Pembahagian itu dibuat bersandarkan kemaslahatan pihak atas prinsip keadilan dan hak.

Tuntutan terhadap harta sepencarian bukanlah dihadkan kepada isteri saja, malah suami juga berhak menuntut harta sepencarian daripada isteri. Jika diteliti tafsiran ini, ia menunjukkan bahawa harta yang sama-sama diperolehi oleh suami isteri, bukannya harta yang diperolehi oleh isteri sahaja ataupun harta yang diperolehi oleh suami sahaja.

Manakala dari perspektif undang-undang, seksyen 122(1) Enakmen Undang-Undang Keluarga Islam (Selangor) 2003 memperuntukan bahawa mahkamah mempunyai kuasa apabila membenarkan lafaz talak atau apabila membuat suatu perintah perceraian untuk memerintah supaya aset yang diperoleh dalam masa perkahwinan dengan usaha bersama dibahagikan antara mereka atau supaya aset yang diperoleh pihak itu dalam masa perkahwinan dengan usaha bersama mereka dibahagikan antara mereka atau supaya mana-mana aset itu dijual dan dibahagikan antara pihak-pihak itu. Manakala seksyen 122(2) merujuk kepada faktor-faktor yang diambilkira oleh mahkamah dalam permbahagian harta sepencarian tersebut. Antara perkara yang ambilkira oleh mahkamah adalah:
•    Takat sumbangan yang dibuat tiap-tiap satu pihak dalam bentuk wang, harta, atau kerja bagi memperoleh aset itu;
•    Apa-apa yang terhutang oleh salah satu pihak yang telah dilakukan bagi manfaat bersama mereka;
•    Keperluan anak yang belum dewasa daripada perkahwinan itu, jika ada.

Tertakluk kepada seksyen 122(2), mahkamah juga boleh memerintahkan supaya aset itu dijual dan hasil jualan dibahagikan sama rata antara kedua pihak sebagaimana dinyatakan dalam seksyen 122(3). Manakala seksyen 122(4), mahkamah dengan kuasa yang ada boleh membahagikan aset itu atau hasil jualan mengikut apa-apa kadar yang difikirkan munasabah, tetapi walau bagaimanapun, pihak yang memperoleh aset itu dengan usahanya hendaklah menerima suatu kadar yang lebih besar.

Oleh itu, walaupun harta itu atas nama isteri sahaja, tetapi jika saudara berjaya membuktikan kepada mahkamah bahawa saudara juga ada menyumbang terhadap harta tersebut, maka mahkamah akan memutuskan bahawa itu adalah harta sepencarian. Merujuk Kitab At-Turuq al-Hukmiyah karya Ibnu Qayyim al-Juziyyah mengatakan, dalam tuntutan suami isteri membabitkan harta sepencarian, tuntutan hendaklah berdasarkan keterangan pihak yang membuktikan tuntutan itu. Kenyataan mengenai hak terhadap harta sepencarian bukan hanya diambilkira berdasarkan nama harta itu didaftarkan semata-mata sedangkan pihak satu lagi mungkin menyumbang cuma namanya tiada dalam daftar hakmilik harta itu.

Namun begitu, Hukum Syarak menetapkan bahawa suami tidak ada hak ke atas harta mutlak isteri, contohnya harta isteri yang diperolehi melalui harta pusaka daripada keluarganya. Selain itu, harta-harta perseorangan yang dibeli sebelum perkahwinan dan harta-harta tersebut tidak diusahakan bersama sepanjang tempoh perkahwinan juga bukan harta sepencarian. Saudara juga perlu memastikan bahawa harta-harta itu adalah harta perolehan bersama dan bukan hadiah atau hibah yang dihadiahkan kepada bekas isteri. Oleh itu, saudara tidak boleh menuntut hadiah yang telah diberikannya kepada bekas isteri sebagai harta sepencarian.

Menurut satu hadis yang diriwayatkan oleh al-Tirmizi dan al-Hakim yang bermaksud:

“Tidak halal bagi seseorang menuntut balik sesuatu pemberian atau barang yang telah dihibahkannya kepada orang lain kecuali dia adalah ayah yang mana ayah boleh menuntut balik ke atas pemberian yang diberikan kepada anaknya.”

Diharap segala penjelasan dan informasi yang diberi dapat membantu saudara dalam memahami konsep hak dan pembahagian harta sepencarian. Perlu diberi perhatian bahawa Hukum Syara’ dan undang-undang ini bertujuan untuk memelihara kedua-dua hak suami dan isteri. Selanjutnya, pihak kami mengalu-alukan sebarang pertanyaan atau kemusykilan mengenai perkara-perkara berkaitan.
Husband not being fair after polygamy
email to someone printer friendly


Question:

My husband had taken a second wife without my consent. Since then, he has neglected to pay me the maintenance that he used to give before his second marriage. Not only that, since his second marriage, he also sometimes fails to pay the children's maintenance. When I lodged a complaint with the Religious Office, one of the ustazahs from the polygamy department told me that when a wife works, the husband's consent for her to work can be used to replace the monthly maintenance that is compulsory for him to pay. So, what are my rights as a wife? Is it true that a husband is not required to pay for maintenance for wives who work? Is my husband not being fair by not providing me with maintenance like he did prior to taking a second wife?

Widuri,
Taman Miharja


Answer:

Polygamy is allowed under Malaysian law but there must have been permission given by the Syariah Court. This is provided under Section 23 (1) if the Islamic Family Law (Federal Territories) Act 1984.

Pursuant to Sections 23 (3) and (4) of the Act, in giving said permission to enter into a polygamous marriage, the Court will consider several factors. Among those factors are: whether the polygamous marriage is just and necessary, the financial situation of the husband, whether or not the husband would be able to act fairly towards the wives, whether or not the consent and views of the existing wives have been obtained and that the marriage will not cause darar syarie upon the existing wife.

In your case, if your husband has taken another wife without the Court's permission, it is considered to be an offence under the law. Pursuant to Section 123 of the same Act, if he is charged and convicted of the offence, he can be fined for an amount not exceeding RM1000 or imprisoned for a period not exceeding 6 months, or both.

Even though the law states that you are required to attend in Court for the purpose of obtaining your views prior to giving your husband the permission to take another wife, it is merely a factor that the Court would consider. It is not the determining factor for the Court to give permission for your husband to engage in a polygamous marriage.

However, your husband has to prove that he has fulfilled all the requirements and conditions under Section 23 of the same Act. This was decided by the Selangor Appeal Committee in the case of Rajamah v. Abd Wahab (1990) JH 171. Because the husband failed to prove that he can fulfill all the said conditions and requirements, the Court decided to reject the husband's application for permission to take another wife.

Grounds:
In a polygamous marriage or not, it is the responsibility of the husband to provide for the wife's and children's maintenance. Surah Al-Nisaa verse 34 which means: The men will take care of the women, because Allah has given more to the men compared to the women, and because the men has spent (provide maintenance to support women) from part of their property.

Polygamy should not be made as an excuse to not provide for maintenance. For this reason, the Syariah Courts in Malaysia set the rule that a husband has to obtain the Court's permission before entering into a polygamous marriage. This is to avoid injustice committed against the existing wife and her family. Justice is the most important aspect of a polygamous marriage. Allah in Surah Al-Nisaa verse 3 said as follows: "If you fear that you would not be able to be fair and just towards your wives then marry only one."

The law has provided that the Court has the power to order a husband to pay maintenance to his wife and children. Section 59 (1) provides for this power. Therefore, you may make an application with the Syariah Court for an Order against your husband to pay maintenance. You may state that maintenance has not been received ever since your husband took a second wife as grounds for the application. You have to list down the items for which maintenance is being asked, for example, electrical bills, water bills, telephone bills, your children's bus fares, their school fees, their daily school expenses, clothes, household needs, your daily expenses and so on. The husband's duty to provide maintenance to his wife and children continues even though the wife has her own income. It does not mean that the husband can let go of his responsibilities by not providing maintenance.

Section 128 of the same Act provides that a husband who does not act fairly towards his wife has committed an offence and can be fined for an amount not exceeding RM1000 or imprisoned for a period not exceeding 6 months or both.

Even though you have lodged a complaint with the Religious Office, that office only plays a role in providing counselling or advice regarding the problems you face. You have to go to the Syariah Court in order to demand for maintenance because only the Syariah Court has the power to make an order to compel your husband to pay maintenance for you and your children.

You are advised to seek for justice in the Syariah Court as it is clear that your husband is not being fair to you and your children upon him taking another wife.

Panel lawyers, Sisters In Islam.

(You are welcome to post your queries to Sisters In Islam at No. 7, Jalan 6/10, 46000 Petaling Jaya Selangor or call our TeleNisa line 03-7784 3733 every Monday, Thursday and Friday or e-mail us at telenisa@sistersinislam.org.my)
Review of "hudud" proposals
email to someone printer friendly

Review of "hudud" proposals

23 May 2002

While it is encouraging to note the statement by the Terengganu state authorities (reported in NST, The Sun and Utusan Malaysia, 23 May 2002) that it is willing to postpone the tabling of the "hudud" bill to the July session in order to make some amendments to certain provisions of the bill, based on the responses and feedback that it has received from the public, we wish to point out that an overall review of the conceptual framework of the proposals as a whole should also be conducted.

All along, the PAS state governments of both Terengganu and Kelantan have repeatedly claimed that their version of the "hudud" law is the Divine Law of God. The very fact that glaring contradictions have been exposed between some of their proposed provisions with the actual letter and spirit of the Qur'an and authentic hadith may also raise serious doubts as to the propriety and conformity of the other provisions with the true spirit of the Divine Sources of the syariah.

It must be clearly understood that there is a vast difference between the divine sources of Islamic law-the direct revelations in the holy Qur'an-and the non-divine sources, which are the result of human juristic interpretations and opinions. A large part of historical Islamic jurisprudence is man-made, not divine. The formation and development of Islamic law took place over several centuries and through a variety of processes. The founding of the four orthodox schools of law began at least 100 years after the death of the Prophet (saw.).

To ensure the realisation of a just system of law based on the eternal and universal fundamental principles of Islam, very careful study and detailed re-examination needs to be carried out into the provisions of the proposed hudud laws. It is indeed most tragic that Qur'anic injunctions that are intended to protect all law-abiding members of society in general, and women in particular, have been distorted into legal provisions that have lead to the very opposite results in some Muslim countries which are claiming to implement the syariah criminal law. The provisions of the hudud proposals should also be re-examined in the context of universal Islamic human rights concepts.

It should always be remembered that God's forgiveness and mercy (for both men and women) is a constant and recurring theme that is emphasised in the holy Qur'an. For instance, after the punishments for sariqah or theft (in Surah Al-Maidah) and for zina and qazaf (in Surah An-Nur) are laid down, God's forgiveness and mercy is mentioned:

those who afterward repent and amend their conduct, God is Oft-Forgiving, Most Merciful (Surah Al-Maidah 5 : 39, Surah An-Nur 24 : 5).

Should human beings and human-made institutions therefore hasten to punish what God, in plentiful mercy, may ultimately, even amply, pardon? On what grounds, we may ask, should humans presume impetuously to do so, pre-empting Divine Mercy. Even those of the most sincere and correct motivation, and even if they are operating on the basis of unquestionable legislation, and through legislative and judicial institutions of irreproachable integrity and ability, (which is not often the case in this very imperfect world), should be cautious of joining in any overzealous rush to judgment.

1. Sisters in Islam
2. All Women's Action Society (AWAM)
3. Association of Women Lawyers (AWL)
4. Wanita Ikram, Persatuan Komuniti Ikram, Kuala Lumpur
5. Majlis Pertubuhan Ibu-Ibu Tunggal Malaysia
6. National Council of Women's Organisatioms (NCWO)
7. Wijadi
8. Women's Aid Organisation (WAO)
9. Women's Candidacy Initiative (WCI)
10.Women's Crisis Center (WCC)
11.Women Development Collective (WDC)
Terengganu Hudud Enactment
email to someone printer friendly

Terengganu Hudud Enactment

17 July 2002

Sisters in Islam (SIS) deeply regrets that the Terengganu State government has insisted on hastily passing the Terengganu Hudud and Qisas legislation, despite the many concerns voiced by various different groups, including women's groups, regarding the proposed enactment. Although it has made some piecemeal amendments to certain provisions of the original draft bill, we wish to point out that an overall review of the conceptual framework of the provisions as a whole is also required.

All along, the PAS state governments of both Terengganu and Kelantan have attempted to silence criticism by repeatedly claiming that their version of the "hudud" law is the Divine Law of God. The very fact that glaring contradictions has been exposed between some of their original provisions with the actual letter and spirit of the Qur'an and authentic hadith also raises serious doubts as to the propriety and conformity of the other provisions with the true spirit of the Divine Sources of the syariah.

There is still confusion between rape and zina, when rape is regarded to be "zina by force" within the category of zina. Rape is actually a violent and heinous crime against women, a violation of a woman's body which is even worse than a violation of monetary property, and is the worst form of hirabah. Section 9 has been amended to allow a rape victim to bring qarinah (circumstantial evidence) in lieu of four male witnesses to the rape, and it is said that where there is circumstantial evidence, the rape complaint will be investigated.

However, there is still confusion on this point. What is the approach to be taken by this "investigation"? Is the purpose of the investigation to gather evidence against the alleged rapist, or merely to verify the woman's statement? Is the burden of proof placed on the woman rather than on the state authorities? Is the woman possibly liable to be charged with qazaf and/or zina should the investigators decide that there is lack of evidence to support her claim? It is acknowledged by legal practitioners, as well as by medical doctors and counselors, that even circumstantial evidence is often difficult to obtain in rape cases.

The present Penal Code and Criminal Procedure Code, which are in conformity with the principles of ta'zir legislation under Islamic criminal jurisprudence, provides for circumstantial evidence. It is inevitable, however, that in some cases, the prosecution would fail to produce sufficient evidence to convict the accused, and the accused would be acquitted, not because he is actually innocent, but because he is given the benefit of the doubt. The acquittal of the alleged rapist does not mean that the victim is lying, it merely means that the state prosecutors have failed to prove the case beyond reasonable doubt.

The Hudud enactment passed by the Terengganu state government clearly contravenes the principle of justice emphasized by Islam. For instance, a Muslim convicted of theft would have his hand amputated while a non-Muslim convicted of the same offence would only be punished with imprisonment.

A non-Muslim criminal is also given the free choice to select whichever law he wishes to be tried under. Therefore, if he feels he could get acquitted under the Hudud law, he would choose to be tried under Hudud, and if he feels that he is bound to be convicted he would choose to be tried under the Penal Code. This inequality and injustice is bound to raise conflicts between Muslims and people of other faiths in our multi-religious country.

We believe that moral education and spiritual awareness are the best possible weapons in tackling the various ills in our society, rather than the imposition of severe punishments. Islam teaches the spirit of universal love among the community, and also emphasizes upon the importance of repentance and rehabilitation of sinners. God's forgiveness and mercy is a constant and recurring theme in the Qur'an. Therefore, we call upon all parties to refrain from using Hudud as a means of gaining popularity and political support as this would only bring Shariah and Islam into disrepute

Sisters In Islam
Press Briefing on the Incest Case
email to someone printer friendly

Sisters in Islam views with concern the prosecution for incest of a 17-year-old girl, by the Kelantan Syariah Court. There is an assumption here that the daughter, considered a minor under civil law, is a willing partner in committing the crime of incest.

The daughter initially pleaded not guilty and had defended herself. However, the next day, after a discussion with her mother via telephone during a break in the trial, she thereafter pleaded guilty to the charge of incest. The court bound her over to be of good behaviour for one year with her mother standing surety. Since her mother has failed to post the bond of $1,000, the girl was sentenced by the court and committed to a rehabilitation home for one year.

While we welcome the Court's use of its discretionary powers in not allowing the publication of the girl's name and its decision not to imprison the girl, Sisters in Islam would like to raise some issues of concern, socially and legally, in the handling of this case. Important issues which need to be considered:-

* Is the girl a victim or a willing partner in the commission of the crime of incest? What was the evidence that led to the assumption of guilt against the girl and the decision of the Syariah Court to prosecute her? Even if it was felt that the girl was a willing partner, due to her young age and the perpetrator was a figure of authority and control, questions should arise as to the voluntary nature of her act. She could have been a victim of child abuse, or she could have committed the act under duress or coercion by the father.

* What are the safeguards that exist to ensure that her guilty plea was indeed genuine? The fact that the girl had at first pleaded not guilty and then changed her plea after speaking to her mother by telephone, the fact that the girl was in tears after this conversation, that her mother was not in court to give her support, should raise some concern and questions about the circumstances of her guilty plea.

* Given the nature of the crime and the relationship involved, should the Court exercise its discretionary power and request for further information to ascertain if a charge should in the first place be made against the girl? Could the Court take the parties into chambers to discuss the matter and advise the prosecution to withdraw the charge or order that the girl be discharged after due advice?

* Conflict between two parallel legal systems: The girl is a minor under civil law (under 18 years of age). However, under syariah law she is considered a "baligh" (one who has attained the age of puberty) and therefore a "mukallaf", one who is of right mind and therefore able to distinguish between what is good and bad and therefore take responsibility for her actions. Under syariah law, once a girl begins menstruation, she is considered an adult and therefore liable to a prosecution for illicit sex. Today, a girl may reach puberty at nine years of age, but does that mean she is mature enough to be held responsible for her actions? Under civil law and in society's eyes, she is a mere child. What provisions exist under syariah law to protect the interest of children and young persons against crimes perpetrated by adults in positions of authority and control over their well-being?

* We welcome the court's willingness to apply its discretionary powers and consider the provisions provided in the civil law, more specifically the Juvenile Courts Act, 1947 (“JCA”) in respect of the non-publication of the girl’s name/identification (s. 5A of the JCA) and in binding her over to be in good behaviour for one year. We wished, however, that the court could also have used its discretionary powers in considering the girl a juvenile instead of an adult and accord her the procedures provided for under the JCA.

* In what way was the girl's interest protected in the handling of this case? Under the JCA (s. 10), such a case would be referred to a Probation Officer who would provide the Court with information as to the girl's general conduct, home surroundings, school record, medical history so as to enable the Court to deal with the case in the best interests of the juvenile. The Juvenile Court will also not hold a hearing without the report of the Probation Officer. Moreover, the court is assisted by two advisers, one of whom is a woman, whose duty it is to inform and advise the court with respect to any consideration affecting the punishment or other treatment of any child or young person brought before it (s. 4(2).

* Should the confession of a father to the crime of incest be used as a mitigating factor to prosecute the victim, a minor under the protection and control of an authority figure who is also the pepetrator of the crime? Even if there was overwhelming evidence against both the father and the daughter and the fact that the father admitted to the charges, the Syariah Court must give due consideration to the fact that the victim is the daughter and a minor.

* Given the reality of present day society where girls begin menstruation at a much younger age, shouldn't the religious authorities review the definition of “baligh” and the assumption of “mukallaf” to determine whether a young person can be held responsible for her actions. Even if the daughter in this case did consent to such an act incest, society would question the circumstances of her family life and relationship that could enable such an act to happen. These must be regarded as mitigating factors.

LAW

1. Kelantan Enakmen Keterangan Mahkamah Syariah 1991
(Kelantan Evidence Enactment of the Syariah Court, 1991)

2. Enakmen Kanun Jenayah Syariah, tahun 1985, Negeri Kelantan

(Kelantan Syariah Criminal Code Enactment 1985)

3. Enakmen Acara Jenayah Syariah No. 9/83, Negeri Kelantan

(Syariah Criminal Procedure Enactment 1983)

4. Akta Mahkamah Juvana 1947

(Juvenile Courts Act, 1947)


24 August 2001
(Divorce)

The recent amendment to the Federal Constitution to prohibit discrimination on the basis of gender poses a special challenge to the Syariah Court and the Islamic religion authorities in Malaysia to take steps to end all forms of discrimination against Muslim women in law and in practice, committed in the name of Islam.

The right to equality before the law and equal protection of the law and now the right to non-discrimination on the basis of gender are constitutional guarantees for all Malaysians to enjoy, Muslims and non-Muslims.

Sisters In Islam believes that nothing in these constitutional provisions conflict with Islam, a religion that upholds the principles of equality and justice for all.

In order to fulfil the demands of these constitutional guarantees, Sisters in Islam is launching a campaign to end the delays and injustice women suffer in the Syariah Courts in divorce proceedings.

This is a long standing problem and Muslim women today want this gross injustice and discrimination against them to end. We acknowledge that the Islamic Family Law in Malaysia enables women to get a divorce by ta'liq, and also provides for 12 different grounds to enable women to get a divorce by Fasakh.However, there are many shortcomings in the implementation of the law which contribute to the delays and injustice suffered by Muslim women. These include :

1. Gender bias in the attitude of the Court
While a man faces no obstacles in getting a divorce, the Court very often appears reluctant to grant a divorce to a woman without the agreement of her husbad, even though the grounds for divorce are clear. (see cases of Aida and Esah and Siti). When a woman initiates divorce, the Court seems over anxious to preserve the sanctity of the marriage, even though it has irrevocably broken down. This attitude, however, does not seem to cloud the court's judgement when a man initiates divorce.

2. Weaknesses in procedure
-Court's insistence on use of lawyers even though the law allows for women to represent themselves.
-Court's insistence on mediation, even though parties heve not been able to reach agreement through mediation.
-Court's insistence on husband's presence and allowing several postponements of cases because of husband's absence.

3. Counselling sessions
-Counselling session organised by the Religious Department (RD) are not mandatory under the law, but women are sometimes required to attend such sessions before their cases are heard in court, even in a case where the husband was violently abusive and had already been sentenced to imprisonment (see Esah's case).

4. Problems with lawyers.
Women sometimes receive unwarranted advice from their lawyers who tell them to go back to their husbands. Therefore, those women feel as though their own lawyers are on the husbands' side rather then on their side. Women also of face the problem of mounting legal fees when their cases are delayed. Women who cannot afford to hire the services of a private lawyer have to go to the Legal Aid Bureau (LAB) for help. The inadequate number of legal officers and staff at the LAB further aggravate the problem of backlog of cases and delays in the hearing of cases in court.

5. Lack of information
Women are often accused of being ignorant of their rights under the law, as well as being ignorant of the correct procedures in making their applications. Women cannot be expected to be aware of all the legal technicalities and the lack of information on certain basic procedures (filling the correct forms, etc) contributes to the delays.

6. Administrative weaknesses
Delays are also caused by administrative weaknesses e.g the difficulties in obtaining a copy of the marriage certificate required by the court before the case could be heard.

We acknowledge that various positive steps have been taken by the Syariah Judicial Department under Dato' Sheikh Ghazali, through the Practice Directions issued to the Syariah Courts to reduce the problem of delays. In particular Practice Direction No.2 of 2001 directs the mention of cases within 21 days after the case has been filed, and Practice Direction No.4 of 2001 directs that postponement should only be granted on reasonable grounds and that a date should be given for the next hearing. We are concerned, however, as to the proper implementation of these directions.

The following proposals are made with the hope that they will assist in overcoming or reducing the problems of delays in divorce proceedings.

Process and procedure

1. Uniform procedures in all Syariah Courts to overcome the problems and confusion caused by lack of uniformity.
2. Counselling sessions should be voluntary, not mandatory, and should be conducted by qualified and gender sensitive counsellors. Time limits of 3 to 6 months should be set.
3. Summary proceedings should be provided for in ta'liq cases, as they are provided for in talaq cases. In cases of discrepancy over evidence, the wife's solemn oath that the husband has breached any of the conditions in the marriage contract, should be sufficient for the judge to grant the divorce.
4. Divorce, once granted by a Syariah Court, should not be appealable. While a decision rejecting a divorce application may be appealed against, if a divorce has already been granted, then appealable issues should only relate to the question of ancillary reliefs.

Appointment of judges and officers

5. Increase the number of Syariah judges and court officers. Include the appointment of women as Syariah judges. Better incentives should be provided for these posts to attract more qualified persons.
6. Gender sensitisation courses to be conducted for Syariah Judges and court officers.

Legal counsel

7. Increase the number of officers at the Legal Aid Bureau.
8. Set up a body such as a Syariah Bar Council to monitor the Syariah lawyers and to provide an avenue to settle clients grievances.
9. Provide the space for Legal Aid Clinics to be set up at the court to assist women who are representing themselves.

We reiterate our hope that the recent amendment to the Federal Constitution will be a major step forward in the process to end all forms of discrimination against Muslim women in law and in practice, and to ensure the realization of the principles of equality and justice that is enshrined in the teaching of Islam.

Sisters In Islam
Go to page   <<        >>  

Copyright | Privacy Policy | Contact Us | Sitemap