Wednesday, May 15, 2013

Access to Justice for Muslim Women in Conflict Affected Area: Is “Shariah Law” Effective?

“The women victims are forced to marry the perpetrators to suppress the shame. Sometimes, the rapes or sexual harassments are videotaped and then publicized. If the perpetrators are military officers, the cases have to be tried in Court Martial and the victims are not allowed to bring the cases directly to the Court as being the plaintiff”….(quoted from presentation of Angkhana Nilapaijeet in Bali, 2-3 May 2013)

The quotation above is one of other cases of Muslim women from conflict affected area in Southeast Asia, which had been shared during Expert Group Meeting in Bali held by The Asian Muslim Action Network (AMAN Indonesia) with the support of UN Women. Attended by 28 Muslim women from Thailand, Cambodia, Burma, Philippines and Indonesia, the Expert Group Meeting (EGM) was interested to find an intersection between women human rights instrument such as Convention on Elimination of All form of Discrimination and Violence Against Women (CEDAW), UN Resolution 1325 regarding women, peace, and security and Muslim Family Law to advocate access to justice.  This article is intended to answer whether Shariah Law is effective to respond access to justice for Muslim women in conflict affected area in Southeast Asia.

Though almost all countries, 187 out of 193 countries have ratified CEDAW, on the contrary the number of cases of violence against women are prevalence. UN Women reports that in Vietnam 95 of cases of domestic violence (DV) and in Indonesia 96 percent are perpetrated by husbands against their wives. In Thailand, 44 percent of women victim of DV reported that they have suffered sexual and physical abuse while in their current or former relationship. It is also shocking in Malaysia, 57 percent of DV survivor have suffered from their husband, ex husband, live-in partner or boyfriend in the first year of relation.

In simple words, CEDAW is threatened by cultural norm which is discriminative to women that has blocked access to justice of victim and survivor of violence against women. As instrument of human rights, states obligation and demands such as complaint, redress, and remedies for violations of women’s rights are explicitly stated on CEDAW. Therefore, to guarantee effective and gender responsive justice, that potentially prolong discrimination against women, which inhibit women’s capacities and capabilities, restraining their legitimate demands to voice, choice and safety, should be strongly taken consideration by the justice sector.
To optimal CEDAW, in the context of conflict and war, the UN Security Council Resolution 1325 regarding women, peace and security is addressed. This resolution is to ensure women’s involvement in all phases of conflict prevention, protection, participation in decision making process, including relief program during conflict, recovery and rehabilitation. Shadiah Marhaban from Indonesia suggested creating a women forum coexisting with peace forum to increase possibility to have more women representative in the peace agreement. Her personal experience as the only woman included in the Helsinki peace agreement gave strong lesson on how important women to have strategic role in preparation of peace talk.   

In relation to impact conflict to women, Andy from National Women Commission (KOMNAS Perempuan) reported that women suffer from physical violence, intimidation, sexual violence, in all of conflict area in Indonesia during attack. Moreover, in relation to deployment of security force in Timor Leste, Papua, Aceh and 1965 era, women suffered from sexual slavery, sexual exploitation, forced contraception and abortion. In camps, harmful tradition practices such as blind Chinese marriage, domestic violence, deprived living condition, and treats and acts of rape, invasion of privacy are very common. In Aceh, women should face complicated situation when Shariah Law is implementing as alternative government, which deliberately domesticate women from access to social, culture and economy. Though, Shadia Marhaban clarified that Aceh Free Movement had never campaigned to have Shariah Law in Aceh. But the fact that Shariah Law has formulated into qonun (local regulation) need to criticize.

In Southern Thailand, Anchana Hameemah highlighted that detainees and their families have no guarantee of their life from state in regards to safety life after release from the prison. Victim of sexual violence suffers from double burden. In one side, they are situated to not speak out because rape is considered as “taboo” to talk because in patriarchal society it erodes the honor of family and society. It is reported by Angkhana Nilapaijeet, activist of human rights that women victim of rape are often forced to marry the perpetrator to avoid “moral panic”. It is considered as the best resolution for both families. In Burma, Muslim women event cannot go to public to share their feeling about the stateless status and the unsecure situation they are facing.
Event the situation become worse, when element of religion is attacked to give legitimation to domesticate women from public for security reason and “moral” protection. Pateemoh from Patani, witnessed from her field work that some Ulama (religious leader) in the village A regulates how women and men should and should not do. Women must wear hijab (head scarf) with long slaves, if not they will cut their hair. Women could not present to public with no reason.

Now, the situation is more complicated when religious element with bias interpretation is used to restrain access to justice for victim and survival of violence against women, block women’s participation in decision making process and neglect economy, social and cultural rights of women. This is one of the reasons why we need to pay serious attention on the Muslim family law. Prof. Musdah Mulia believes that family law is the essence of Shariah. It means that during the prophet life, the family law had been a matter of surpassing the importance of Islam, which must be treated more thoroughly and given greater detail in Muslim countries than any other subject. On the other hand, it is also tricky area where reinterpretation of Islamic jurisprudence is challenged by the realities of contemporary life.

Similarly, Alpha Pontal from Musawah, an International Muslim women network, pointed out from her presentation that equality in society can only be achieved when equality in the family is attained. As the smallest unit in the community, family is central to our lives, where everyone hope safety and happy space, equally empowering to all. Unfortunately, within family, we face a lot of cases of exploitation and discrimination against women are rampant, forced marriage, domestic violence, trafficking in women and children using the modus operandi of marriage, high number of children marriage, unregistered marriage, and widespread practice of polygamy. To eliminate all form of violence against women, Prof. Musdah promotes the new paradigm of Marriage Law, which women’s rights-approach is used as basis of consideration to determine argumentation. With women’s friendly interpretation, we should incorporate holistic approach in understanding definition of marriage, guardian in marriage, witness in marriage, Minimum age of marriage, dower of marriage (mahr), marriage registration, nusyuz (disobedience),  rights and responsibilities of spouses, earning livelihood, polygamy, inter-religion marriage, iddah (the waiting period), ihdad (the mourning period),marriage contract, and extra marital children.

Is “Shariah Law” Effective for Access to Justice? 

Shariah and shariah law has different understanding. Shariah is understood as the moral code and religious law of Islam (not legal system). It deals with many topics addressed by secular law, including crime, politics, and economics, as well as personal matters such as sexual intercourse, hygiene, diet, prayer, and fasting. There are two sources of Shariah; Al-Quran and hadist (the prophet tradition). While, Shariah Law, in this article define as legal system of Shariah, which mostly discuss about jurisprudence (fiqh) wherein (male bias) cultural element strongly influence to interpretation. Is “Shariah Law” effective  for Access to Justice of Muslim women in conflict affected area?  

It is difficult to answer “yes” or “no” on this case. But let me explain to you some of argumentations that we may take as consideration. Firstly, distortion of Shariah is rampant when it transform into legal system, because the detail interpretation in which cultural aspect and political interest are often bias. In addition, translating Shariah into legal system has tendency to understand the essence of Shariah in symbolic way. It means the understanding of human being is scoped by interest of culture, social, economy and politics, which unfortunately give more privileges to men and vulnerable to create discrimination and violence. Moreover, the legal framework is inflexible to accommodate each case with specific approach, because the formulation should be applicable to one category, no matter motivation and stimulus are diverse.

Secondly, the Prophet never interpreted Shariah into legal system during his life time, because the law and interpretation is in the hand of prophet, who was well-known as great leader. During the prophet life, each case was treated special and responded differently in accordance to case stimulus. One of popular hadist is often quoted regarding a sex worker who got forgiveness from the prophet because she gave a dying dog water to drink by using her shoe.

Once, the rajam interprets into legal system, the explanation and indicator must reflect the common practice in Muslim society, including the text tradition. The interpretation of legal system must be textual, clear and exact, unless the judge has broader perspective to analyze beyond the case. So, he or she might be able to take other facts as consideration while interpreting the article on the legal system. The legal system is constraint as limit as human capacity. 

Thirdly, the absent of discourse on sexual violence or rape in Islamic text can be one of big barriers for Muslim women to enjoy their ECOSOC and political rights. From the workshop, Yuni Chudaifah from KOMNAS perempuan elaborated the crucial concept of zina (fornication), which often misused in Muslim society. When all form of extra marital sex is simply understood as zina, then rape is hardly recognized and people may simply resolve the case by marrying victim to perpetrator. If this codifies into legal system, both victim and perpetrator must be punished, which is not fair. 

In responding access to justice of Muslim women in conflict affected area, the legal system of Shariah may not be effective, because there is strong tendency to interpret it in male-bias argumentation.  Moreover, the transformation of Shariah into legal system is tricky, slippery, and attempted to use for political interest.


In community level, communities should build on existing indigenous knowledge and practices that already promote women’s access to ECOSOC rights. Address negative community attitudes (and their consequences) towards victims and survivors of sexual violence by: encouraging discussion with religious authorities on the differences between rape and zina (fornication), and advocacy not to marry off rape survivors with the rapes, and for women’s access to safe abortion services. 

In national level, government should provide harmonization of law and coordination between different government agencies and levels of government. This will ensure that discriminatory local laws do not contradict national laws which generally speaking are less discriminatory. 

In regional level, engage with ASEAN’s mechanisms including AICHR, ACWC, the ASEAN Secretariat to provide them with information and encouragement to promote ECOSOC rights for women in Muslim conflict areas. Finally, in international level, The UN (particularly the Human Rights Council and CEDAW Committee) must make strong recommendations and monitor their implementation by state parties, including submitting reports to the UN human rights mechanisms, submitting cross-reviews. Civil society should also submit reports to the Independent Permanent Human Rights Commission (IPHRC) of the Organisation of Islamic Conference (OIC).
You may read this writing to or in POTRET magazine with bahasa version. 

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