Thursday, June 5, 2008

Stand PGSM_CEDAW

Pihak Kementerian Wanita minta PGSM bagi feedback mengenai CEDAW. Di bawah ini adalah stand PGSM yang ditandatangani oleh Yang Berbahagia Tuan Presiden PGSM. Banyak lagi berkaitan CEDAW perlu didalami untuk memahaminya dengan baik, tetapi sekadar huraian sebahagiannya, stand dan penjelasan ini sudah cukup baik dan memadai. Aku adalah sikit sebanyak terlibat dalam memberi stand ini.. tapi yang banyaknya adalah Presiden sendiri, seorang ilmuan kontemporari yang berilmu.. Feedback tersebut diletakkan di sini untuk rujukan.
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THE RESERVATIONS AND DECLARATIONS ON THE CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN (CEDAW)
By
Persatuan Peguam Syarie Malaysia


FEEDBACKS

Article 5(a)

a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of sexes or on stereotyped roles for men and women.

Declaration

With respect to Article 5(a) of the Convention, the Government of Malaysia declares that the provision is subject to the Syariah law on the division of inherited property.


PGSM Feedback:

Social and cultural patterns has been embedded in the society sometime. Some practices do not necessarily discriminate any gender but differentiate the role to be played by any segment of the society. This should not be viewed as discriminatory. Social and cultural patterns which rooted from religious command must enjoy certain privileges. It is the command from God Almighty and has its own philosophy.

The role of men in Islam is to ensure the maintenance and welfare of the family. It is responsibility of men which is subjected to accountability here and hereafter. It does not refer to the concept of authoritarian which is understood by many people that a man is superior and has absolute power over the wife but rather as religious responsibility to be fulfilled by the men.
In fact, law at the first place has compelling man to discharge his duty as the head of family such as providing monthly maintenance to the wife which is consistent with the warning given by the Prophet that among the greatest of responsibilities that had been placed upon man is that pertaining to the treatment of his wife.
Besides, one’s behavior towards one’s wife is the measure of the perfection of one’s belief as the Prophet said : “ The most complete of the believers in his belief is he who perfect his manners, and the best of you in manners are those who act best towards their wives.” We must view this from the lenses of Islam and not from other religion which do not propose the similar concept.

In Islam the relationship of men and women (husband and wife in a legal marriage relationship) is of complimentary in nature. Everybody has his or her rights, roles and responsibility which at the end of the day, both of them want to create a happy and harmony family. For instance, in Islam the utmost rights need to be performed well by wife is treating her husband nicely and caring for need of her husband which are considered as required considerations to gain that such monthly maintenance.

However, in such religious rules of inheritance, we should adhere to the Islamic ruling about the proportion of the wealth according to Islamic inheritance law. This is not customary or social patterns but rather religious rules; therefore we should not go against the Syariah law and highlights the idea of equality in proportion and division of the wealth.
In principle, both man and woman are equally entitled to inherit the property of the deceased relations, but the portions they get may vary due to the reasons why man gets more are firstly, a man is the person solely responsible for the complete maintenance of his wife, his family, and any other needy relations. Secondly, in contrast, woman has not financial responsibilities whatsoever.
She is financially secure and provided for. In what so ever ways, Syariah should be prevailed and the proportion of the division between male and female in Islamic inheritance law (faraid) should be accepted as ‘qatie’ (definite) provision in the Quran and shall not be questioned further.

Action suggested:

We need to change the paradigm shift of the society, to change the method of thinking and acting in order to see men and women (husbands and wives) are complementary to one another. The concept of responsibility of men to provide maintenance and good protection to the wives is accountable in the eye of God but not in whatsoever bring to the idea of superiority or having absolute power over women.

PGSM Recommendation:

This Article 5(b) shall be maintained to be reserved especially on the religious rules on the division of inheritance between men and women.

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Article 7(b)

State Parties shall take all appropriate measures to eliminate discrimination against women in the political and public life of the country and, in particular, shall ensure to women, on equal terms with men, the right:

b) To participate in the formulation of government policy and the implementation thereof and to half public office and perform all functions at all levels of government.

Declaration

With respect to Article 7(b) of the Convention, the Government of Malaysia declares that the application of said Article 7(b) shall not affect appointment to certain public offices like the Mufti, Syariah Court Judges, and the Imam which is in accordance with the provision of the Islamic Syariah law.

PGSM Feedback:

We agree to the declaration that with regards to the position as Mufti and Imam, the requirements shall in accordance with the Syariah law. However the position as the members in Islamic Legal Consultative Committee, Majlis Fatwa (Fatwa Council), Majlis Agama (Islamic Councils in every state), there should be no restriction to appoint women for that positions.

With regards to the appointment of women as Syariah Court Judges, the appointment is permissible provided in the matter of civil only and not in hudud cases. The previous scholars have different views among them where some of them approved and some disagreed on the appointment of women as judges. In support of this, the minority view produced out by Imam Abu Hanifah stated the approval of women to hold this position in all cases except hudud and qisas cases as such they have eligibility to be witnesses. There is no specific rules / law which prohibit the appointment of a woman to be Syariah Court Judge at present.

However we have to take note that there is no qatie nass (definitive text) on this matter, therefore it is speculative issue (zanni) or ijtihady matter which is considered open to a new ijtihad based on the changes of time and situation. Therefore, we should take into consideration on the matter of time, situation as well as the development of our society in making decision on this matter.

We also shall adhere to the fatwa made by the National Fatwa Council (Majlis Fatwa Kebangsaan) on 6th April 2006 when they decided that it is permissible for women to be Syariah Judges provided they have the qualification, credible and having wide experience in Syariah matters but not in hudud and qisas cases. There is a hope that the Syariah matters especially related to the marriage and family law could be settled smoothly in the future by their appointment.

Action suggested:

We need to encourage women who have qualification and wide knowledge on Syariah to apply for the positions. We also need to change the paradigm shift of the society as well as qualified women to accept and think positive about this post.

PGSM Recommendation:

This Article 7(b) shall be applied provided it shall not affect appointment of Imam and Mufti only.

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Article 9(b)

b) State Parties shall grant women equal rights with men with respect to the nationality of their children.

Declaration

With respect to Article 9, paragraph 2 of the Convention, the Government of Malaysia declares that its reservation will be reviewed if the Government amends the relevant law.

PGSM Feedback:

We agree to the declaration since the provision is not contravenes with Hukum Syarak.
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Article 16

1. State Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women.

a) The same rights to enter into marriage
c) The same rights and responsibilities during marriage and at its dissolution
f) The same rights and responsibilities with regard to guardianship, ward ship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation, in all cases the interests of the children shall be paramount.
g) The same personal rights as husband and wife, including the right to choose a family name, a profession and n occupation;

2. The betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory.

Declaration

With respect to Article 16(1a) and paragraph 2, the Government of Malaysia declares that under Syariah law and the laws of Malaysia, the age limit for marriage for women is sixteen and the men is eighteen.


PGSM Feedback:

We are of the view that men and women play different roles in marriage. Both group have their own role to play and to equalize the role will result breaching up the family structure. Therefore, parties to marriage should not have equal rights as mentioned above.

Marriage in Islam is a sacred and holy relationship. Therefore it is guide by various principles in Islam. Islam differentiates the roles of husbands and wives. Parties to marriage cannot go beyond the ambit of Islamic law. Nevertheless, the differentiation actually does not result in discriminating any party to the marriage. It is to ensure the family institution will run smoothly.

PGSM Recommendation:

This Article shall be applied provided it shall not affect the provisions of Syariah regarding the rights and responsibilities under religious law including the rights of talaq, the maintenance, and the maintenance after divorce and the concept of custody in Islam.
Signed by
Hj Zainul Rijal Abu Bakar
President