Dossier 27
WLUML (Published: December 2005)
The codification of Muslim personal laws (MPL)
in minority contexts has become an increasing focus of concern for active WLUML
networkers in recent years, from Benin to the Philippines, and from South Africa
to Canada.
Introduction by Cassandra Balchin This concern
takes diverse forms and positions. In some contexts, such as Sri Lanka, women
from the minority have been demanding positive reform in the existing separate
legal system that is binding upon Muslims and in the Philippines an entire
alternative Code has been drafted; in Israel, Arab women’s groups have focused
on demanding access to the State Family Court, rather than reforming the Shari’a
Courts). In other contexts, such as Canada, women within Muslim communities have
successfully resisted the introduction of such systems for fear of their impact
upon their rights. In yet other contexts such as India, where minority MPL have
not yet been codified, women have adopted various strategies including demands
for a uniform civil code as well as advocacy efforts to ensure greater
protection for women’s human rights within the uncodified personal laws that
apply by default to those marrying under Muslim laws.
Activist women’s
concern comes against a background where our multiple and complex identities are
being increasingly reduced to a single, religious identity. This identity is
invariably defined by patriarchal and right-wing forces within a religious
community, usually with the connivance of the state through policies of
multiculturalism or constitutional guarantees of ‘religious freedom’ which
silence the voices of the marginalized, progressives and secularists. Often,
too, this identity is presumed – by the state or wider society - as a
consequence of a person’s parentage or ethnicity, and decisions are made for
them on the basis of this presumed identity.
Although this is a global
trend, not restricted to Muslim contexts, as WLUML our focus is on Muslim
minorities. However, the state’s treatment of other minorities such as Jews,
Hindus or Christians does have meaning for women activists’ engagement on issues
of MPL. Sometimes preferential treatment or recognition historically given to
other minorities is used by the Muslim extreme right to demand separate family
laws, and sometimes the strategies used by progressives within other religious
communities to ensure positive state policies or changed community attitudes can
serve as inspiration.
The right-wing’s political manipulation of issues
of personal laws and identity is evident from the fact that the overwhelming
focus is on family laws although personal laws include a far wider range of
matters. How often do we hear demands for obligatory zakat payments for Muslims?
Why do not as many insist upon non-interest bearing (riba-free) banking or
mortgages? It is because by controlling women and creating fear of their
autonomy that the dominant forces within a community can retain their control
over the entire community – and indeed influence even wider society.
A
great deal of the theoretical reflection and academic argumentation in favour of
separate Muslim family laws for minorities (almost always based on regressive
interpretations) is currently coming from migrant Muslim communities in Europe
and North America. These are contexts where the long-established right-wing
Muslim political parties of South Asia and the Middle East have recently gained
considerable influence and can command substantial resources – possibly more so
than Muslim minority communities in the global South.
In addition, state
policies of multiculturalism in some contexts, the widespread influence of
cultural relativism, and the unholy alliance between some leftists and
fundamentalists have given even greater prominence to these regressive voices.
The political content of this argumentation in Europe and North America
is clear from the fact that the proponents are rarely able to specify the
precise content of such separate family laws. To do so would expose the myth
that Muslim laws are homogenous and would reveal the human character of the
interpretations that dominate our lives. It would also expose the fundamentally
misogynistic approach behind such demands because the precise content of
separate MPL would, according to their interpretations, include recognition of
polygyny and instantaneous unilateral talaq by men.
By engaging in
lengthy theoretical debates over whether Muslims in migrant or minority contexts
can be termed as being part of ‘Darul Harb’ (‘the abode of war’ – a term used
among conservative traditions to refer to hostile areas not under Muslim rule)
and coining terms such as fiqh al-aqliyat (separate jurisprudence for Muslim
minorities), the proponents of separate laws for Muslims in effect obscure the
main question: what legal structures and provisions would best ensure social
justice, specifically guaranteeing the realisation of women’s rights within the
family? Solutions may be different in different contexts and one solution may
not be the most option-giving for all women, but the questions must remain the
same.
The papers in this Dossier as usual cover a range of styles. Some
are historical and descriptive, while others focus more closely on the impact of
existing systems affecting Muslim minorities and reform efforts. In all it is
clear that women find that the existing system does not uphold their human
rights.
The variety of women’s strategies is evident. Whereas in the
Philippines women have proposed an alternative Muslim Family Code, in Fiji the
effort was to introduce a uniform code applicable to all women. Equally, the
contexts are diverse, from long-established minorities in East Africa and India
to more recent arrivals in Europe and North America.
Despite this
diversity, a common thread emerges across the contributions: that of the
political manipulation of identity and women’s autonomy by right-wing political
forces and the immense difficulties women face in challenging discrimination. In
each of these contexts, the wider political situation in which minorities are
ignored and oppressed, complicates demands for gender equality.
The
success of Canadian women’s struggle against the introduction of Muslim laws in
family matters (the news of which reached after the Canadian paper in this
Dossier was written) has had a far-reaching impact. The Extreme Right in Britain
and India were both using the example of the Canadian developments to bolster
their own demands for a separate system for Muslims and the establishment for
formal Shari’a courts respectively. These demands have now fallen silent.
Moreover, the Canadian experience revealed the tremendous value of alliances
across communities and of international solidarity.
This Dossier is
currently being translated into French and Arabic.Includes:Dossier
27: Why bring Islamic personal laws into the public space? Episodes from
Tanzania (Salma Maoulidi)
Dossier
27: The Shari’a courts in the Philippines: Women, men and Muslim personal
laws (Isabelita Solamo-Antonio)
Dossier
27: Reforming Muslim personal laws in India: The Fyzee formula (Yoginder
Sikand)
Dossier
27: The campaign for gender equality in family law: The passage of the
controversial Fiji Family Law Act 2003 into law (P. Imrana Jalal)
Dossier
27: Muslim family laws in Israel: The role of the state and the citizenship of
Palestinian women (Hoda Rouhana)
Dossier
27: Should different kinds of people living in the same province be governed by
different kinds of laws? (Pamela Cross*)
Dossier
27: Islamic law and Muslim minorities (Muhammad Khalid Masud)
Dossier
27: The reception of Muslim family laws in western liberal states (Pascale
Fournier)
Dossier
27: Contributors
(WLUML)