.. What makes Malaysia’s gender policies peculiar is the Government’s contradictory positions and actions. On the basis of citizenship, Muslim women are equal to women of other faiths and are equal to men. But on the basis of faith and culture, we are treated as unequals.
Thus, while the Government in the past decades has amended laws that discriminate against women, such as the Law Reform (Marriage and Divorce) Act 1976, the Guardianship Act 1999 and the Distribution Act 1958 which have enabled women of other faiths to enjoy equal rights to marriage and divorce, a ban on polygamy, equal rights to guardianship and equal rights to inheritance, Muslim women were left out of these progressive reforms to recognise the principle of non-discrimination.
What made it worse for Muslim women was that while these laws for non-Muslim women were being amended, even more laws and policies were amended to further discriminate against Muslim women.
The Insurance Act 1996 was amended to provide that the Muslim beneficiary named in an insurance policy acts only as the administrator of the estate, as the deceased insurance monies is to be distributed according to faraid. This means that if a man buys a policy and names his wife and daughters as his beneficiaries in order to protect their well-being upon his death, they will actually not be the sole beneficiaries of that policy. The monies will be divided according to faraid, as defined by the Shafie school of law. This means his parents and siblings or even distant male relatives will be entitled to claim a share.
The same applies to EPF funds as well. In 2000, the National Fatwa Council issued a fatwa to extend the faraid rule to EPF funds. So if a husband names his wife as the beneficiary, she actually only acts as an administrator.
This means that if a woman has children, she gets only one-eighth of the monies; if she has no children, she gets only a quarter, while the rest goes to the husband’s surviving heirs. If he has no other surviving heirs, the monies go to Baitulmal.
If the husband is a convert and there are no children, his non-Muslim children from an earlier marriage or his non-Muslim parents or siblings cannot benefit from his insurance policy or his EPF monies as non-Muslims are not considered heirs.
A convert friend of mine was so outraged and baffled that we could have decision makers who could think that he should purchase an insurance policy that would benefit Baitulmal, instead of his loved ones.
The saving grace is that many Muslims have the conscience to recognise the injustice of these policies and have not chosen to contest EPF and insurance monies that have gone to the bereaved widow and the children.
Another outrageous discriminatory position was the attempt to exclude Muslims from the jurisdiction of the Domestic Violence Act 1994. The negotiation to criminalise violence in the home took five long years, from 1989 to 1994, not least because of arguments that a Muslim man has a right to discipline his wife physically and that wife-beating was a family matter that should therefore come under the jurisdiction of the Islamic Family Law.
In the end, the demands of women’s groups that one law that criminalises domestic violence must apply to all Malaysians prevailed, but not after two more years of resistance by some in government who refused to allow the law, which was already passed by Parliament in 1994, to be gazetted and enforced.
Then of course the infamous series of regressive amendments from the 1990s onwards to the Islamic Family Law, once regarded as the most progressive personal status code in the Muslim world.
This process was yet another reflection of how the politicisation of Islam in this country has empowered conservative voices in the Muslim community. It is their interpretation of Islam and their disregard and contempt for Muslim women’s rights and interests that have prevailed. This, not withstanding the far more progressive position held by the national leadership.
In the 1980s, divorce outside the court was outlawed. Not any more. Polygamy without the permission of the court was outlawed. Not any more. The father of a child born out of wedlock was responsible for the child’s maintenance. Not any more.
Then came the additional amendments beginning in 2003 which added insult to injury. A husband could claim a share of his wife’s matrimonial property upon his polygamous marriage; a husband could get a court order to prevent his wife from disposing of her property; polygamy was made easier by amending the condition “just and necessary” to “just or necessary”; and further grounds for divorce were extended to men who already enjoyed the unilateral right to divorce his wife, without rhyme or reason.
It was stunning that the legal drafters could introduce gender neutral 
language to extend rights traditionally given to women to men, with no reciprocal attempt at all to extend rights traditionally given to men to women. And the then Minister in charge of religion had the gall to explain that these amendments were made in the name of equality and non-discrimination as provided for in the Federal Constitution!
The public outrage that followed and the revolt led by women Senators in Parliament was a signal to the Government and the religious authorities that Muslim women have had enough. Many men joined the protests, too – men who believed in equality, men who loved and respected their wives and their daughters and found it outrageous that such laws could be made in their name.
On top of Shahrizat’s agenda must be the need to push through the re-negotiated amendments to these discriminatory amendments which were finalised almost two years ago. All other laws and policies that discriminate against Muslim women must also be amended. Then work must begin for a longer-term comprehensive reform of the Muslim family laws to recognise the principles of justice and equality in marriage and divorce, a right that non-Muslim women in this country have enjoyed for over 25 years.
She must advocate for Muslim women in Malaysia to enjoy the same rights as her sisters of other faith, and as all men. It is ridiculous that the Government tells the world that its policies on equality and non-discrimination apply only to non-Muslims while Muslim women must continue to suffer discrimination because of narrow-minded and outdated understandings and interpretations of culture and religion that no longer have bearing to the realities of women and men’s lives in the 21st century.
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