MGG Pillai Commentary View

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A mixed-up decision on Muslim SMS divorces

WHEN THE EAST GOMBAK SYARIAH COURT decided a short messaging message (SMS) sent by Mr Shamsudin Latiff to his wife, Mrs Azida Fazlina Abdul Latiff, that if she did not leave her parent's house, she would be automatically divorced, was valid, what followed was typical. The women's groups were up in arms, as usual. The Prime Minister, Dato' Seri Mahathir Mohamed, had a smart alecky response, as usual. The deputy prime minister, Dato' Seri Abdullah Ahmad Badawi, wants the Malaysian Islamic Development Council (JAKIM) and the Syariah Judicial Department to look into this, his usual response to let someone else decide. The Islamic affairs minister, Dato' Seri Abdul Hamid Zainal Abidin, rushes to bolt the barn doors after the horses had bolted, as usual.

All forget the East Gombak Syariah Court only followed a fatwa (diktat) by the National Fatwa Council allowing SMS divorces. Where were all these worthies when it issued the fatwa? When an SMS divorce is pronounced valid now, with general elections planned, the women's groups up in arms, the women's vote generally favouring the ruling National Front (BN) coalition, and the government clueless on how to react, it triviliases the issue. And threatens to put things right the only way Malaysia knows how: the cabinet is called to criminalise the act, with heavy penalties for those who foul of it. Now if a Malay divorces his wife by SMS, he could be jailed for it. No doubt on the principle that it enhances family life.

Mullah Abdul Hamid Zainal Abidin relied on the 1984 Islamic Family Law Act to say a syariah court must authenticate the SMS divorces. He has nothing much to say beyond that. The Syariah Court did just that. So why the fuss? It requires a man to get his wife's consent before he takes another. But husbands getting that consent in stealth, by having the wife's thumbprint on the consent letter as she sleeps, is not uncommon. The same law forbids Malay man to marry another wife in Thailand. One UMNO vice president took another view through this route, along with a few cabinet ministers, chief ministers, corporate leaders and prominent BN politicians. This is so blatant that it is a scandal. But the cabinet did not recommend, as now, of criminalising the act. Why?

The women's organisations and the woman cabinet minister who are up in arms did not realise the import of the National Fatwa Council. The syariah judges have indicated the government cannot involve itself in the administration of syariah law. That is as it should be. If the law provides for it, it must be followed. That is the government's usual response when an unfair or unacceptable decision is handed down by the civil courts. But with an election near, and the women's votes so important, the BN government must do something about it. And reacts not in calm and quiet deliberation but on the run, saying what comes out of their mouths without understanding or realising the import of what they say.

The sanctity of marriage is demeaned by SMS and other unusual forms of divorce. The Prime Minister said it in his usual irrelevance: When a husband meets his beautiful wife he might get the urge to talk to her and not divorce. He forgets that when a marriage breaks down, the man sees not a beautiful wife in front of him but a harridan. It is an instant fix. As is the cabinet decision to fine and jail a man who divorces his wife by SMS.

Every one talks at cross purposes. The administration of Islamic Law follows the strict Saudi Wahhabi practice, not the more liberal interpretations found elsewhere. Indeed, one major problem Islam faces in the world is the encroachment of Wahabbi practice in the four major schools of Islamic jurisprudence outside the Middle East. The role of women, who were liberated from their bondage at the time of the Prophet Muhammad, have been drastically reduced to the present state as Islamic politicians in pushing for an Islamic state rely on ancient tribal practices to reduce women to an insignificant secondary role. In Malaysia, this is aggravated by the explosion of women power in all sectors of society, Muslim and non-Muslim, and Muslim men, long used to dominate, find themselves at a loss. So they resort to Islam to establish their dominance over their women. The decision to allow SMS divorces is one, the refusal to act against those who marry another without his first wife's consent another.

In other words, with Muslim women now flowering into a society the Prophet Muhammad had envisaged, the man use the religion he founded to push them back into the pre-Islam condition of bondage. I would argue that the prominence women have in business, civil service, the professions is a reflection of their role designed for them in Islam, and should be encouraged. In Malaysia, concomittant with this development is that Malay men find themselves at a disadvantage for a variety of reasons and react in primordial fury. It would not reverse the clock. The women would in time soften that blow as they become more prominent in public life. But they cannot when the role of women is viewed in the Islam practiced here as a sexual appendage.

With PAS on one side fighting for an Islamic Wahabbi Shafiee state, and UMNO deciding it already is, neither can address the rights of women or modulate the harsh restrictions on women. The Malay cultural mileau gives women a higher role than Islam does, but the move to an Islamic state threatens to reduce that even further. The Taliban movement in Afghanistan is often cited as proof that Malaysian Islam is humane and not extreme. But the Taliban exists in a society where the tribal laws are stricter and harsher. To an Afghan, though not to President Bush or Dr Mahathir, the Taliban are modernists. One has to look at societies not from a Western or academic perspective but in the conditions of how it developed. But the globalisation of religion holds it to an alien standard which rides rough shod over local societies.

There is one constitutional problem over the administration of Islamic laws in Malaysia. Each sultanate in the federation has its own Islamic law, and is not beholden to any federal dictates unless they agree. When Malaysia in 1974 decided, with Singapore and Indonesia, to co-ordinate the beginning and ending of the fasting month, the then Prime Minister, Tun Abdul Razak, did not discuss it with the states or the Conference of Rulers. Several states would not agree, and went their own way, so that it was an offence to begin or end the Ramadan fast in one but not in another. This confusion led to various bureaucratic rules which the federal government cannot remove, requiring more than a dozen groups to sign the moon for the onset of Ramadan, when once it was only one or two.

When Parliament passes a law on Islam, it is only valid in the federal territory, Penang, Malacca, Sabah and Sarawak, the states without sultans. In the other states, it is of persuasive value. The National Fatwa Council, composed of represenatives of all the states, was to ensure that its fatwas would be accepted by all states. It should have called a national conference to find a remedy. That is not possible when BN and UMNO insist it administers the only Islam that matters in Malaysia. That is why the administration of Islam is so combative and confrontational in Malaysia. But when a practical problem appears before it - the SMS divorces, for example - it is diffused and uncertain.

M.G.G. Pillai
pillai@mgg.pc.my