By Jenson Davenport
Adil is the Islamic term for ‘justice’, meaning ‘fairness, equity, righteousness, honesty.’ Ideas of adil may be found in verses of the Qur’an1. Justice in Islam is closely related to ideas of equality, focusing on the equal distribution of rights and duties, benefits and detriments for individuals and the community. One way to measure justice may be to assess its accessibility; the result of which leads to the enforcement of the law and the protection of the party’s legitimate rights or interests. In a perfect world, issues concerning access to justice would simply not exist. A claimant would not be barred from seeking the justice they deserve based on personal characteristics such as class, race, gender. As we are all aware, this is unfortunately not the case. Mainstream jurisprudence has been criticised for discounting gender differences inherent in society and for perpetuating patriarchal power2, leading to legislation which disproportionately burdens women, or grants them less protection under the law compared with men.
In 2018, Shariza Kamarudin released a book aptly titled “Access to Justice: Women’s Experiences in Penang Syariah Courts”3, whereby she documented a study performed on Muslim women’s access to justice, focusing on the Syariah Court – whose jurisdiction is primarily in the realm of the family – in the Penang state in Malaysia. Her findings were disheartening, but unfortunately not surprising. She noted that although normative protection for Muslim women exists, as provided for by the Penang Islamic Family Law Enactment 2004 (IFLE 2004), provisions that related to polygamy4 and talaq5 divorces still continue to be a constant source of “injustice and distress for women, stemming primarily from inadequacies in substantive law which uses gender biased language.”6 Amongst this, Kamarudin indicated that the Syariah courts are more lenient on Muslim husbands and ex-husbands “to the point that divorced Muslim women and their children lose their legal entitlements.” 7
Kamarudin is not alone in her findings. In 1966 and 1999 respectively, both the Women’s Centre for Change (WCC) and Sisters in Islam (SIS) – two incredibly influential NGOs within the state – conducted studies focusing on women as users of Islamic family law in Malaysia. Their findings mirror what Kamarudin concluded as recent as 2018. “Women have difficulties in accessing the Syariah legal system.”8 A simple sentence which speaks volumes. SIS noted a link between the patriarchal culture of Muslim families and their reluctancy to find comfort in the legal system. This connection between culture, and the treatment of women within the private sphere cannot be disconnected from their treatment in the public sphere; and in the courtroom. Access to legal awareness can be just as important as access to justice; without the knowledge that they have certain rights, or can proceed in certain ways, injustices will continue to plague legal systems in the modern day. It is no surprise therefore that, when arguing for solutions to the inequalities Kamarudin found within the Penang Syariah Courts, she pushes for increased education surrounding rights and privileges for Muslim women. “The findings show that several factors hinder women’s capacity to seek legal remedies. They have a low level of awareness of their rights under Islamic family law. They also have limited access to legal aid.” 9
At the moment, women’s groups in Malaysia like WCC and SIS do organise workshops and seminars for women to attend, where issues of rights and legal protection are discussed and explored by those that attend. Unfortunately, however, Kamarudin suggests that more formal state agencies such as the Penang Islamic Religious Affairs Department and the Penang Syariah Judiciary Department “did not respond appropriately to situations where women sought help from them.” There is distrust within the legal system, there is disappointment within the judicial process. Women do not feel represented in the law and struggle to find legal representation when it is most needed. There are only two legal aid agencies in Malaysia, Legal Aid Bureau and Legal Aid Centre. They both are unfortunately understaffed and thus inefficient at providing representation to those that are most in need. Thankfully however, there are other sources of legal aid available for the Muslim women of Penang. There has been a push for private lawyers to offer instalment payment schemes for women that may not be formally eligible for legal aid, allowing them to still obtain a degree of legal representation.
It is the legal culture within Malaysia which raises particular concern, however. Women report that Syariah courts are “biased, inefficient and full of delays. Some women also claim that even judges are biased towards them.”10 This is truly unsatisfactory; any legal system purporting to represent the rule of law should not adhere to bias amongst judges and across the judicial process as a whole. It is this factor which unsurprisingly has led to a dissatisfaction amongst women towards the judicial process and the law generally. From Kamarudin’s study, almost all respondents had problems due to delays when filing for divorce, many times said to be due to uncooperative husbands refusing to attend a court hearing or allow the divorce to progress through the judicial process. This is only worsened by the fact that courts are reluctant to enforce court orders on husbands often leading to divorce cases being prolonged for a number of years. The frustration and fatigue felt within the Syariah Courts is understandable. At a governmental level, these issues appear to have been untouched. In fact, amendments made to the Islamic Family Law Federal Territories Act (IFLA) in 1994 only seemed to have removed some women’s rights and security protection under the law by removing the 5th of five conditions necessary for a man to legally enter into a polygamous marriage. This condition was that the marriage “should not directly or indirectly lower the standard of living enjoyed by the existing wife and dependants.”11 With this condition gone, the first wife of a man wishing to marry another woman can have her standard of living decreased without having adequate financial redress. SIS have sought to reform Islamic family law by reinterpreting verses of the Qur’an to fit contemporary Muslim society to relay equality between the genders – even wishing to “eradicate polygamy in Muslim societies.”12 Their attempts have appeared to have been in vain however – no changes were made to the law in that capacity.
The issue of access to justice for Muslim women is not just a problem halfway around the world. It can be seen right on our doorstep. In 2019, Muslim Women’s Network UK (MWNUK)13 conducted a study not so dissimilar to Kamarudin’s 2018 study, entitled “Muslim Women’s Experience of the Criminal Justice System”14, highlighting that “[Muslim women] disproportionately experience adverse socio-economic conditions and within their families and communities often experience further inequalities from the gender roles expected of them, and behaviours rooted in concepts of honour culture.” Thus, says MWNUK, when Muslim women find the courage to report abuse to the police, they are taking a colossal step. “If they then receive a poor service, it can disempower and deter them (and others who may be aware of the step they have taken) from continuing with any reports made to the police or from making future reports, or they may drop cases before they reach the court’s door.”
The findings of MWNUK were, once again, disheartening, but unfortunately not surprising. The discrimination of Muslims and other ethnic minorities in the UK, both within the criminal justice system and out, is apparent; it is also seriously alarming. In a Home Office study, it was found that 47% of religious hate crime offences were targeted against Muslims15. Along with statistics like this, MWNUK found from their investigation that there were poor CPS and judiciary standards of service provided when dealing with female offenders who were also victims of abuse. The quality of publicly funded barristers and the lack of understanding by judges on the impacts of abuse was shown to have led to victims of abuse not obtaining adequate standards of service and ultimately denying them the justice that ought to be provided. In many situations, it is the procedural fairness itself which is the justice sought after. On the whole, the study seemed to suggest a lack of understanding from the police and CPS regarding the needs of different communities. Risk factors were often missed, and safeguarding measures often neglected.
What I’m hoping to illustrate here is that both home and away, a Muslim woman’s access to justice is often impaired by factors outside of their control. Whether that be due to cultural norms – or differences – or instrumental deficiencies and biases within the judicial process itself, it is clear that Muslim women often suffer at the hands of the law, disproportionately to men. It is clear that internationally, ways of assisting women in this area must be addressed and implemented. Whether this be through legislation reform, better funding of public legal aid agencies, a better understanding of women’s issues or cultural issues, adequate education for women concerning their legal rights, the end result ought to be that all those in a court of law must be treated equally, all throughout the administration process up until judgment is delivered. It is regrettable that the conclusion made by the WCC study in 1966 and Kamarudin’s study in 2018 essentially mirror one another. Over 50 years apart, and yet very little progress made. “Women have difficulties in accessing the Syariah legal system.” That is still true today.
- Verses 16:90, 55:7-9, 4:135 to list just a few.
- Barnett (1998): Introduction to Feminist Jurisprudence
- Kamarudin (2018): Access to Justice: Women’s Experiences in Penang Syariah Courts
- Literally translated as “to release”, dissolution of marriage is made by virtue of words or pronouncements that effective dissolve the marriage. Provisions relating to talaq may be found in s.47 IFLE 2004
- Kamarudin pp.15
- Kamarudin pp.13
- Kamarudin pp.16
- Kamarudin pp.111
- Kamarudin pp.14
- Formerly found in ss.24(4)(e) IFLA. The provision now states that this has been repealed by Am. Act A902: s.9
- Shukri & Owoyemi (2014): Sisters in Islam’s Quest for the Reinterpretation of the Qur’an and Hadith: An Analysis of their Views on Equality, Women Judges and Polygamy
- A national organisation in Britain, working to “improve social justice and equality for Muslim women and girls”