KUALA LUMPUR, Aug 30 — Sisters in Islam (SIS) is now in its 20th year of giving free legal advice and plans to continue helping even more Malaysian Muslims find answers to difficult questions on challenging topics like polygamy, divorce, child custody, and husbands who fail to provide financially for the family.
Since its free legal advisory service Telenisa began in 2003, SIS has helped a whopping 15,000 persons nationwide — 90 per cent women, 10 per cent men — by informing them of their legal rights under Malaysia’s Islamic family law and local laws on Shariah criminal offences.
While this is a remarkable achievement for a non-governmental organisation better known for its promotion of Muslim women’s rights locally, SIS believes that Malaysia needs to do better by going beyond temporary solutions like Telenisa and carry out long-awaited reforms that would improve the fate of Muslim women and children.
How did it all begin?
In a video interview played at the recent celebration of Telenisa’s 20th anniversary, SIS co-founder Zainah Anwar said the 35-year-old organisation’s founding members had decided since its founding to not provide legal advice, as they did not have the resources to do so and were focusing on researching and advocating for reforms to Malaysia’s family law.
Zainah said SIS’s co-founders had contacted various legal clinics that were also unable to cope with the cases they were inundated with.
“But as time went on, we realised that there were so many complaints about the Shariah court, the system, the discrimination against women, the gender bias.
“And I think what was really frustrating were the complaints from women who felt that they were not getting empowering advice from whether it is the religious departments or the government legal clinics, or the Shariah courts,” she said in the interview done by SIS itself, adding that Muslim women have often been told that they need to be obedient to their husbands in Islam and of the husband’s right to marry four wives.
For example, Zainah questioned the advice given by an “ustaz” or religious teacher in a case where he told a woman to accept her husband who suddenly showed up at her home after abandoning her and their children for 24 years. The woman had raised the children herself and had led an independent life before the husband’s abrupt reappearance more than two decades later.
SIS felt the overwhelming demand from the public who were desperately seeking for answers, after the organisation started publishing a weekly column in 2002 in local Malay-language newspaper Utusan Malaysia on Islamic family law issues. SIS told Malay Mail that its weekly column in Utusan Malaysia ran until around 2010 or 2011.
Zainah said the newspaper column gave SIS a space to “promote justice, equality, compassion in Islam” as a counter to “misogynistic” voices, citing for example that a local academic had said it would be better for a man to touch pigs than to shake a woman’s hands.
Zainah said it was heartening that many law firms were willing to help SIS answer the flood of questions from Muslim women on Islamic family law.
“At the end of 2002 then, of course we just got deluged with phone calls, faxes, letters from Utusan readers to help them solve their problems, whether it’s issues of nafkah (maintenance), polygamy, divorce, domestic violence.
“Our column would appear on Friday, so Friday and Monday, the phone would ring non-stop, women calling us, asking for help.
“And really, I guess because of that demand for gender-sensitive legal advice, because women, some of them have already gone to government legal aid centres for advice, but they were not happy with the advice they were getting. They felt this doesn’t make sense, it’s not fair on them.
“So they were coming to us for advice. So we felt that, look, obviously there’s a need here for SIS to do a legal clinic, because of all these questions and phone calls we were getting from women,” she said.
Following Telenisa’s launch in 2003, Muslim women were then able to approach SIS directly such as for face-to-face legal counselling, instead of just writing to Utusan or SIS with questions.
In the same interview, Zainah said it is now time for a “systemic change” in Malaysia, and that Telenisa’s legal advice service is only a “band-aid” or temporary solution amid a “stagnation” in Islamic family law here.
“Because right now, what we are doing is band-aid. This one there’s a problem, we give advice, but the problem continues, it’s already 20 years. The same problem that we heard in 2002, 2003, this is 2023 — the same problem.
“Someone needs to be ashamed that this is going on when civil law has moved forward to grant women rights, more rights, and our family law — stagnation, hasn’t moved at all to enable women not just to move forward but at least get their rights that exist under the law.
“We have to focus, the next strategy is really to look at systemic reform, how best can we do this,” she said while acknowledging the possibility of resistance to reform and those who use Islam to justify why changes cannot be made.
Malaysia’s laws need to view women as equals to men
When asked by Malay Mail on what improvements should be made to Malaysia’s Islamic family law and Shariah court system, SIS executive director Rozana Isa said: “What we need is systemic change within the Shariah Court system that recognises women not only as claimants of rights but that they are first and foremost, human beings of equal worth to men and that they deserve to be treated with dignity and respect.”
Rozana said that the Islamic family laws in Malaysia should undergo “holistic reform” instead of “piecemeal changes”, and that the country’s laws should be changed to reflect the fact that women should not be seen as objects that are “subservient” to men.
“Laws pertaining to marriage, divorce, guardianship, maintenance, inheritance, etc must be reformed to reflect women’s equal worth and dignity, thus their rights, especially in the context and reality of Muslim women in Malaysia today,” she told Malay Mail.
Rozana listed suggestions on specific examples of reforms that would be necessary for Muslim women to have their rights, including on polygamous marriages (where Muslim men are allowed to marry up to four wives).
For polygamy, Rozana urged the reinstating of a fifth condition under Malaysia’s Islamic family laws — that the existing family will not suffer a drop in their standard of living — in order for a Muslim man to be allowed to marry another wife.
By comparing the original versions and amended versions, Malay Mail’s checks showed that this fifth condition for polygamy existed in state Islamic family laws in the 1970s and 1980s, but that this condition was deleted and scrubbed out or just omitted in subsequent versions of the state laws in Malaysia since the late 1980s, 1990s and 2000s.
For example, Malay Mail’s checks show that the Islamic Family Law (Federal Territory Act) 1984 currently lists down four conditions that a Muslim man must satisfy the Shariah court before it gives permission for him to marry yet another wife.
These four conditions are namely, the proposed marriage with an additional wife is “just and necessary”; the husband has the financial means to support all his wives and dependants (including those from the proposed marriage); the husband would be able to give equal treatment to all the wives; and the husband’s proposed additional marriage would not cause “darar syarie” or harm to the existing wife or wives in terms of religion, life, body, mind, moral or property.
This law for the Federal Territory used to have a fifth condition for polygamy, namely that the proposed marriage would not directly or indirectly lower the existing wife or wives and children’s standard of living — which they had been enjoying and would reasonably expect to continue to enjoy if the additional marriage does not take place. But Parliament deleted this fifth condition in 1994.
Similarly, Selangor’s 1984 version of its Islamic family law had this fifth condition, but this condition was deleted via a 1988 amendment that took effect in 1989; while Kedah had it in its 1979 version but not in its current 2008 version; Melaka and Negeri Sembilan both had it in their 1983 version but also dropped it from their respective 2002 and 2003 editions.
The same was seen in Penang which had the condition in its 1985 state Islamic family law but omitted it in its current 2004 edition, and Pahang which had it in its 1987 law but dropped it from its current 2005 edition, Perlis (available in 1991 law, missing in its 2006 edition), and Sabah (seen in 1992 edition, but missing in its 2004 version).
Rozana also proposed that any woman who unknowingly or unwillingly finds herself in a polygamous marriage should be allowed to “apply for a speedy divorce with fair maintenance and property for herself and children”.
She proposed that Islamic family laws be changed to grant wives a minimum share of 30 per cent amount from the total matrimonial property, and to remove the laws’ gender-neutral language on matrimonial property which enables the husband to claim matrimonial property from the wife.
According to Rozana, Malaysia’s Islamic family laws are currently not based on husbands and wives having equal rights.
“Currently, the Islamic family laws of Malaysia are grounded in a marital framework based on ‘reciprocal’ or ‘complementary’ rights (as opposed to ‘equal’ rights) between the two spouses, whereby in return for maintenance and protection from her husband, a wife is expected to ‘obey’ him.
“Although it is up to the court to decide on whether she was ‘nusyuz’/disobedient, the effect of being found as such can lead to a loss of maintenance,” Rozana said.
Given such a reciprocal framework, Rozana said that even though the law provides the right for women to add on “ta’liq tambahan” or additional conditions to the marital contract, there is a reluctance by the religious authorities to accept and register these additional conditions “perhaps because those in authority don’t believe that women should have such rights or an equal say in the marriage”.
(According to Telenisa’s 2021 report, the “ta’liq” is an agreement that the husband makes and recites immediately after entering into marriage, with this ta’liq to be recorded in the ta’liq certificate printed on the back of the marriage certificate.
The report also said the standard “ta’liq” text for all states in Malaysia gives a wife the right to file for divorce in the Shariah court if the “ta’liq” is violated, namely when the husband mistreats her, leaves her for four straight months or more; if the husband does not provide maintenance for four straight months and the Shariah court does not declare her as disobedient (nusyuz); and if her husband abuses her or causes harm to her body or any other abuse according to the Shariah law. )
Rozana said the additional conditions or ‘ta’liq tambahan’ that Muslim women can ask to be added on include those such as “ensuring the wife can continue to study or pursue a career of her choice after the marriage”; or “that she has a right to divorce if the husband takes on another wife”; or any other conditions that both the husband-and-wife-to-be agree on upon their marriage.
Rozana said the Islamic family law provisions on “nusyuz” should be abolished, as this “forces some women to remain in abusive relationships”.
(Based on SIS’s Telenisa 2022 report launched in July, Selangor’s Islamic family law states that a woman will not be entitled to maintenance or financial provision by the husband if the Shariah court decides that she has been ‘nusyuz’. The Telenisa report said husbands can actually also be found to have been ‘nusyuz’ but Islamic family law does not impose punishment on them for such behaviour.)
As for the Shariah court system, Rozana suggested that there be improved enforcement of the registration requirements for marriages — particularly polygamous marriages, and that rules and procedures be established to ensure the legality of marriages solemnised through religious ceremony, custom or usage.
Rozana suggested that the Shariah judges handling family law cases, marriage conciliators and marriage counsellors be sensitized on gender issues, and that persons holding such positions be required to go through training or have specific qualifications.
She proposed for the Shariah courts to introduce a support counter operated by trained officers to provide guidance to the public to finalise documents required for court, saying: “This is to ensure an experience that is friendly, comfortable and efficient to those who need to go through the procedures of Syariah Court.”
The Telenisa 2022 report said having such support counters would help those who are representing themselves in the Shariah courts due to financial constraints, as Shariah court officials could help review the completed forms and documents to prevent errors in the court papers. Telenisa said such errors may cause cases to be delayed or result in these members of the public having to spend more money to start over again by refiling court papers, and that the support counters could enable cases to proceed more efficiently and effectively.
In SiS’s Telenisa 2022 report, 71 per cent of the 431 individuals who sought help from Telenisa were from the lower-income group known as B40 with less than RM,4850 household income per month. On a whole, 20 per cent of the 431 persons earned less than RM1,000 per month, while 26 per cent earned between RM1,001 to RM2,500 per month, and 25 per cent earned between RM2,500.01 to RM5,000 per month.
As for systemic reform on child maintenance, Rozana proposed that the government establish a National Child Support Agency to act as an independent body to assess, review, enforce and arrange child support payments for Muslim and non-Muslim applicants.
In the Telenisa 2022 report, Shareena Mohd Sheriff, who is a board member of SIS, said the free legal advice service is supervised by legally qualified SIS staff and supported by chambering students in partnership with the Kuala Lumpur Bar’s and Selangor Bar’s Legal Aid Centres.
Apart from that, Shareena said Telenisa may also refer clients to its panel of Shariah lawyers when necessary, and also works with the police, other authorities and other organisations to provide different forms of help such as counselling and shelter for domestic violence survivors and mental health counsellors.
“Often, clients come to us in a state of trauma, anxiety or depression. We take this seriously and we understand that the client requires advice and options on how to handle, resolve or recover from their current situation,” she said, adding that Telenisa prioritises the security, comfort and wellness of those seeking help.
Shareena said Telenisa also provides limited financial aid through its Nik Noraini Legal Aid Fund for court filing costs for underprivileged women for divorce matters.
“Telenisa’s future plans include piloting studies to better understand the needs of the B40 clients of Telenisa in their journey to obtain their rights from the Syariah Courts and to explore and document the necessary environment and eco-system that is required for couples who are separated or with the intention to divorce to have a more successful process at mediation or before they go to the Syariah Courts,” Shareena said.
