The announcement of (Muslim) women as Syariah Court judges in Malaysia is making a repeat performance. The present announcement by Abdul Hamid Othman, religious advisor to the prime minister on Aug 8 is hailed as part of Abdullah Ahmad Badawi's Islam Hadhari plan.

Political secretary to the Internal Security Minister, Wan Ahmad Farid Wan Salleh, said as much when he said that the appointments are 'in line with the bigger picture created by Islam Hadhari '.

My own records show that Abdul Hamid first raised the possibility of appointing women to the Syariah Court bench at the 1999 Umno General Assembly. He was then a minister in the prime minister's department. Nothing was moved beyond that announcement. This time around, we are given to understand that Pak Lah's Islam Hadhari will deliver.

My first foray on this issue was in 1991. I was invited by Dr Wazir Jahan Karim of the Women and Human Resources Unit of Universiti Sains Malaysia to present a paper on the appointment of women judges in the Syariah Courts in Malaysia.

It may be that this paper has been circulated, quoted, borrowed or recycled over the years, as the fact of Indonesia having a hundred Ibu-Ibu Hakim , as was noted in that paper, is still quoted ad verbatim in local press and by local women's groups, twelve years on!

That a hundred or so ibu hakim syarii blossomed in Indonesia by the late 80's, was told to me by Ibu-Ibu Hakim Durrah Baraja and Dra. Faizah Manshur. I met both Indonesian judges at a meeting of the Southeast Asian Sha'riah Law Association (Seasa).

By its constitutive document, Seasa is a regional formation comprising of 'members of the Shariah legal profession'. This includes lawyers and judges of the syariah courts and members of centers of Islamic studies in the region.

I do not know if this formation has survived the 90s or the demise of its progenitor, the late Professor Emeritus Ahmad Mohamed Ibrahim of the International Islamic University, Malaysia.

Prof Ahmad had an illustrious legal career on both sides of the causeway. He was Singapore's state advocate-general from 1959 to 1965 and attorney-general from 1965-1967.

Enabling jurisprudence

Seasa met every two years and it was always a meeting predominated by men and male speakers. This is reflective of the gender imbalance in the field. The two Indonesian women judges at times 'broke rank' in these formal meetings when, at our 'women only' table, they good naturedly shared with me their differences of opinion, if any, to the views of the presenters.

In 1987, Ibu Hakim Faizah made a presentation of the juristic views supporting the appointment of women as judges. It was presented to a meeting of female judges in Surakarta, Indonesia.

She quietly handed me a copy of the presentation and I gave a copy thereof to the Malaysian facilitators of Seasa, with a request that the issue be discussed in forthcoming meetings. It was not acceded to. Regardless of enabling jurisprudence, the matter was just not considered expedient.

It is of interest to note that Indonesia went ahead with these appointments regardless of the disagreement and diversity of opinion (ikhtilaf) among traditional fiqh scholars.

However, there were concerns raised regarding women as presiding judges ( ketua majlis persidangan ) in certain quarters in the Departemen Agama Republik Indonesia.

Ibu Hakim Faizah wrote: "Meskipun kedudukan hakim wanita diperselisehkan para ulama didalam kitab-kitab fiqh, namun kenyataan masyarakat/ulama-ulama menerima kehadiran hakim wanita dilingkungan peradilan agama".

"Kedudukan hakim wanita di Indonesia sudah ada sejak dulu karena tidak ada undang-undang/peraturan yang menentukan bahwa hakim harus lelaki. Dilingkungan Peradilan Umum, Peradilan Militer, Peradilan Tata Usaha Negara dan diMahkamah Agung didudukkan hakim wanita dan tidak dibedakan peranannya antara hakim lelaki maupun hakim wanita sama-sama berperan sebagai anggota Majlis and Ketua Majlis Persidangan".

Malaysia already has women in the federal civil courts. They serve as magistrates and judges in the sessions court and superior courts. Women also serve as industrial court judges.

Differential treatment

It is curious that the appointment of women to the Malaysian syariah bench is controversial despite the practice of appointments in the civil law system and despite centuries old 'progressive' views of particular Muslim scholars on the issue.

We are not talking about fresh ijtihad or a re-interpretation here. The enabling views of some scholars or of particular schools of law on this point were forged in centuries past.

As more and more women are qualified for the syariah bench, the refusal/failure to appoint them as judges may be perceived as sheer prejudice. It discriminates between women and men and also between a woman's capacity to preside over civil and syariah benches.

There is no rationale behind the differential treatment. It places Malaysia in direct contravention to the Convention on the Elimination of All Forms of Discrimination Against Women (Cedaw), a convention signed and ratified in 1995.

A party to Cedaw is inter alia obligated to eliminate discrimination against women in the holding of public office (Article 7 (b)) and employment (Article 11).

On Aug 16, Dr Abdul Monir Yaacob, the director general of the Institute of Islamic Understanding, an Umno ulama think-tank, was reported as saying that 'there should not be any obstacle to women becoming deputy muftis or judges now'.

Abdul Monir is also a serving commissioner of the Malaysian Human Rights Commission or Suhakam. In June 1999, he was quoted in the New Straits Times as saying, "Can women dispense justice? Can they be influenced and emotional? Will they be personally affected? "

He premises these questions for women, as judges, on the allegation that women experience mood changes during menstruation. Abdul Monir appeared to have subscribed to the view that women are physically different from men, and thus should not be treated equally to men.

Women are different from men in that we menstruate. That difference is acknowledged but not as a point for disqualification and discrimination between women and men. Men may be influenced and be emotional as well. Why male judges can be influenced and emotional need not detain us here.

The issue of difference and sameness in gender equality is already part of the legal critique in gender stereotyping in law. Feminist legal theory and practice is now mainstream legal education in most noteworthy law schools.

Deputy ad infinitum?

While Abdul Monir has acceded to women being judges in the state syariah courts this time around, he does not appear to support them holding office as muftis.

We are to assume that there is an obstacle to women being appointed muftis. That was left unsaid. What was also unsaid is whether women are only allowed the position of deputy whatever, ad infinitum?

If women can undergo training to be judges, one wonders what bars them from being trained as muftis, especially when they can be appointed deputy muftis. It is perhaps a blessing that we have not created the post of deputy syariah judge!

Indeed, if one is equipped with the basic scholarship or the capacity to investigate the fiqh (opinions establishing legal principles), concerning women as religious and political leaders, one is able to develop a persuasive and authoritative argument to dispute Muslim views that negate women to public office.

There is fiqh and there is fiqh . The discerning reader will find a variety of the classical works of fiqh translated into Malay, albeit Bahasa Indonesia, in the bookshops in Wisma Yakin, in and around the vicinity of Masjid India in Kuala Lumpur.

Indonesian- trained scholars and activists have long accessed these works in their mother-tongue without any ill-effects.

Traditional ulama may be fiqh scholars or not. There are traditional methods of arriving at fiqh and it is useful for those engaging fiqh scholars on their turf to at least appreciate this.

Khaled Abou el-Fadl (2001) has succinctly summarised these concerns as issues of "authority of Islamic sources, the nature and character of this authority, and who can represent, express and direct it." The 'authoritativeness' of an opinion places a close reliance on these issues.

Authoritative discourses

Having said that, I must caution the ulama that their frequent lack of clarity in providing concrete, authoritative premises of their views (other than that they are ulama) will only serve to make them authoritarian. As will their quick dismissal of views of others on the grounds that they are not ulama.

Reading through fiqh literature is one way of developing an authoritative discourse or opinion. In my view, there are other, equally authoritative ways at arriving at a reasoned opinion.

Muslim scholars, who are not able to keep up with the profusion of contemporary Muslim discourses on interpretation, human rights or even feminist legal theory may find themselves isolated in a time zone of their own making.

Contemporary authoritative discourses on Islam and women's rights are being forged in new public arenas, some close to home.

As a quick illustration, Ian HC Chin sitting in the Sabah High Court in the case of Chang Ah Mee (2003) referred to the Quranic verse ( al-Baqarah: 256 ), that there is no compulsion in religion and ruled that the conversion of a two year old infant to Islam is void under the Federal Constitution.

Aftab Hussain, then Chief Justice of the Pakistani Federal Shariah Court, viewed all the authoritative (traditional) fiqh discourse argued before him by counsel and ruled that Islam does not negate women in public office, as heads of state or as judges. This was the case Ansar Burney v Federation of Pakistan decided in 1983.

Suggested reading

Justice Aftab Hussain (1987), Status of Women in Islam . Lahore: Law Publishing Company

Khaled Abou el-Fadl (2001), And God Knows The Soldiers : The Authoritative and Authoritarian in Islamic Discourses

Khaled Abou el-Fadl (2001), Speaking in God's Name: Islamic Law, Authority and Women . Oxford: One World Publications

Amina Wadud (1992), Qur'an and Women . Kuala Lumpur: Penerbit Fajar Bakti Sdn Berhad

Asma Barlas (2000), "Believing Women" in Islam: Unreading Patriarchal Interpretations of the Qur'an . Austin, Texas: University of Texas Press.