Reading the letters to malaysiakini and others on the Internet and on blog sites, the Islamic Family Law (IFL) debate is not quite over. In my opinion, the law was made the scapegoat for the inadequacy of the some groups in understanding basic points of law and procedure.
I just want to make my point on the matter of jointly acquired property and its relation to the husband's application to freeze assets and polygamy. The position adopted by Sisters in Islam in opposing the freezing of the assets cannot stand at law.
The idea of freezing assets in any court of law including the Syariah Court is to prevent meddling until whatever dispute over the said assets are heard. If evidence is brought to the court's attention that the claimant may have a proven legitimate share in the disputed asset, the matter is settled and ordered accordingly.
No amount of quoting from verses and the hadith can shake that principle. The court has no intimate knowledge of who owns what, etc, until the claim/matter is so proved.
The law allows the wife to freeze assets in the husband's name as she may make a claim to maintenance, arrears, etc. In all fairness, the law should also allow a husband to freeze assets in his wife's name. There could be any number of reasons why he must be allowed this procedure, which is, after all, accorded to his wife over assets in his name. The wife could be a nominee. The assets could be held in trust and so on. We do not know until the matter so alleged is proved to the court's satisfaction.
Those who practice law know that even if the IFL does not contain this procedure, such a procedure could lie in acara mal (civil procedure). Any reasonably good lawyer can access this procedure for his/her client.
Perhaps Sisters in Islam did not take time to explain this properly to the public and its network or it did not have expertise among its members to understand the civil procedure as practised. Having a degree in civil or syariah law and having some experience of how the law works in practice can be two different things.
The state laws in Malaysia have allowed a Muslim man to take on more than one wife. The circumstances are restricted. It then appears logical that he may want to recover or trace his property in order to ensure justice among his wives. This procedure is useful for the existing wife and the proposed wife.
What Sisters and other women's groups have not done research on or realised too late in their campaign is that no one is opposed the idea that the existing wife or wives be allowed to freeze assets in the husband's name at the time he applies to take on a new wife.
If one is to read the IFL in toto, the law allows anybody with any interest in the polygamy application to be heard - existing wife or wives, the proposed wife and children to the existing marriage. They can make their views known, file applications or do whatever they think is necessary to maintain and claim interest in matters including property rights. She can do this or get a divorce.
Like the12 Danish cartoons incident, most people jump to conclusions after being briefed by some groups and not take the trouble to read the actual IFL bill which has become law. I have no idea why this point was not made known. It would have cleared matters a great deal.
The family law is an arbiter, it cannot make happy families. The IFL has room to allow determination of property rights of jointly acquired property upon an application for polygamy (no divorce) or upon divorce and upon death of one of the parties to the marriage.
In a Johor case, where a husband has applied to freeze assets in his wife's name that matter should be allowed to proceed and take its course. If nothing has happened to the matter, the principle of the law as described above is not tainted. Why the hearing is not expedited may be the fault of counsel who may be sleeping on the job, etc, or even of court procedures in delay.
Perhaps this exposure is frustrating for non-lawyers and all of us, but this happens anywhere, even in the civil courts.
In the struggle to maintain group credibility, NGOs and reformers should not ever
compromise on integrity. Sisters' IFL memorandum is, sadly, not a useful campaign tool.
Let us wait to see the outcome of the consultation with the attorney-general.