By Foyasal Khan
August 20, 2016
The Answers May Surprise You
In his recent interview, Dr Ebrahim Moosa, professor of Islamic Studies at the University of Notre Dame, claims that misunderstanding Islam’s teachings, little understanding of Islamic law, Qur’an interpretation, lack of complex literacy, and a poverty of dignity are the causes of the radicalisation of youth. He suggests all Muslims to adopt a sophisticated Islamic education and read the Qur’an and the Hadith supervised by qualified scholars to counter radicalisation.
Appointment of women as judges and leaders in Muslim countries remains a controversial topic that calls for advanced Islamic studies in the light of the present socio-cultural milieu, because a general perception that such appointment might not be in conformity with the Shariah.
However, some contemporary scholars differ with this earlier dominant opinion. On July 19, a timely seminar on women as “judges and leaders” was organised by The International Institute of Advanced Islamic Studies (IAIS), Malaysia, an institution engaged in objective research on Islam and contemporary challenges to the global community and Islam’s engagement with other civilisations.
In this seminar, the three speakers, Prof Dr Mohammad Hashim Kamali, Founding CEO, IAIS Malaysia, Prof Dr Raihanah Abdullah, Lecturer, Dept of Shariah and Law, Academy of Islamic Studies, University of Malaya, and Justice Noor Huda Binti Roslan, Shariah High Court Judge of Selangor, shared their scholarly thoughts on the notion.
It is prohibited for women to hold leadership positions, not even as judges, says Dr Raihanah and Justice Noor Huda while clarifying the position of classical jurisprudence — particularly from the Maliki, Shafii, and Hanbali schools of law. This was supported by early mufassirun, the interpreters of the Qur’an, as well, such as al-Zamakhshari, Ibn Kathir, al-Jassas, etc.
In particular, they took the verse of the Qur’an in Surah al-Nisa (4:34) to be a universal injunction: “Men shall be over women …” Justice Noor Huda specifies further that a woman can be appointed as a judge in Mal (wealth) cases but not in criminal cases according to Ibnu Qassim from Maliki’s school, and women have no barrier to be a judge except in Hudud — punishments which, under Islamic law, are mandated and fixed by God — and Qisas — the right of a murder victim’s nearest relative or Wali (legal guardian) to, if the court approves, take the life of the killer — according to the Hanafi school. Ibn Jarir al-Tabari and Ibn Hazm al-Zahiri opined that a woman can be appointed as judge without any limitation.
It is seen that many contemporary scholars support the majority classical positions of woman as judge and leader. However, some have challenged this notion as they see contradiction in it with other parts of Islamic teachings. The position of Sheikh Dr Yusuf al-Qardawi, a leading contemporary Islamic thinker, is that a woman can be appointed as a judge except in Hudud and Qisas cases because there is no Daleel (proof) which clearly states that a woman cannot be appointed as a judge.
Prof Kamali has discussed the evidence of the role of women as leaders from both the Qur’an and Sunnah (sayings of the Prophet Muhammad). He said that, whether women can be judges and leaders, is subsidiary, the basic question is one of equality and the criteria for appointment as judge should be knowledge of the Shariah and the ability to apply it.
In discussing contemporary trends and challenges of Muslim women in charge in Malaysia, Dr Raihanah says that there is an increasing trend of women joining the workforce and entering traditionally male-dominated professions. This has happened because of the introduction of formal education and equal opportunities for both sexes.
Currently, 50% of the population and 39% of labour participation in Malaysia are women. Thus, women are key contributors to the Malaysian workforce. Bangladesh also has a similar feature of woman participation like Malaysia. In Malaysia, women are involved in all sectors of the economy; however, they are less visible as leaders or policy-makers. Currently, there is only one woman minister.
In contrast, Bangladesh is a case where women have taken charge. In their column titled “Women in Bangladesh are taking charge — from grassroots up to government,” Anna Ridout and Simon Tisdall have rightly pointed out: “Nowhere else do women dominate so many top political positions. Prime Minister Sheikh Hasina is accompanied by a female speaker, Shirin Sharmin Chaudhury; her long-time rival and former Prime Minister Khaleda Zia heads the opposition.” Moreover, there is one minister and three state ministers who are women in the incumbent cabinet in Bangladesh.
Malaysia has a provision of Shariah court which is not present in Bangladesh, though Muslim marriage and inheritance are guided by Muslim law. It was only in 2010 that women were appointed as judges at the Shariah courts due to the urge and the need to solve the gender-bias issues and, as of 2016, two women have been appointed as judges in the Shariah High Court.
Justice Noor Huda states that women have been entering higher education tremendously in the last two decades, including the study of Shariah matters. Currently, among the 400 Shariah officers under the Common Use Scheme for Sharia Officers, 129 are female in Malaysia. In Bangladesh, there were no women judges in the Supreme Court before 2000.
On May 28, 2000 a woman judge, for the first time, was elevated to the High Court Division. As of today, we have six honourable judges in the Supreme Court, including one in the Appellate Division.
Dr Raihanah mentions that viewing women as weak, inferior, “intellectually incapable, lacking spiritually, not qualified enough,” and the negative assumptions of women’s ability to hold top positions in organisations are the challenges to empowering women. She also thinks that women themselves must be more prepared to hold top positions.
It is, therefore, needed to empower them and teach that they are equally as capable as men to hold top positions and be decision makers. Justice Noor Huda highlights that there is a negative perception in Malaysian society towards the Shariah Court that it is not doing justice to women and the court is biased against women when the judge is a male. She hopes that with the appointment of women as judges, society’s negative perception can be changed into positive towards the Shariah Court.
In conclusion, it is said that Muslim women are performing many roles and responsibilities in modern society in the fields of religion, politics, commerce, science, education, and other important functions. Thus, Muslim women are providing important contributions to the socio-economic development of their countries. They deserve to be valued for the services they provide.
Therefore, it is a moral duty and obligation of any Muslim society to ensure enough space and equal opportunity so that a Muslim woman can legitimately obtain any position of leadership and authority for which she is qualified.