Selangor has her first set of women Syariah High Court judges appointed because they are able and not because they are women. Both women will preside, presumably, based on established precedence. While this is a first for Malaysia, Indonesia has had women Syariah judges since the 1960s, although they were, initially, restricted to family law issues. By the 1980s, the women were fully accommodated, sitting in judgement over all cases that come before the bench. The Indonesian experience, then, given the almost half a century since the first woman Syariah judge came on the scene, is worth looking into in anticipation of what might happen here.
Indeed, their gender is not part of the reckoning that won them the appointment. Nevertheless, whether they will be better sensitised to the alleged problems facing women when they go to court, for custody, alimony and maintenance contestations, remains to be seen. However, their presence will, no doubt, further boost women’s participation in such jobs, and better representation and improved access to justice for disadvantaged female litigants. The Indonesian example, however, suggests limitations to what is possible. Naturally, within the parameters of received interpretations — Indonesia, like Malaysia, subscribes to the Shafi’ie school of Islamic law — the women judges strove to give women who came before them justice. Unfortunately, it is not for judges to either expand the received interpretation or to reinterpret the law where complaints of gender bias proliferate. The final outcome is, therefore, to be expected; having women judges in no way feminises the law to bring about gender equality as defined within secular principles.
It is then understandable why, despite the appointment of two women, emphasis was given to avoid any possible mistaken notions of gender concerns as part of the criteria. Why this need? Are we to assume a shortage of male candidates because in most parts of the Muslim world judges are a male preserve? Or, has the Syariah legal system obliterated gender to ensure that the gender equality implications are not carried through to Islamic legal conduct? For instance, if gender equality played a part in the decision to appoint the two women, then the likelihood of it spilling over into other areas of Syariah law becomes inevitable.
Despite the questions raised, one must applaud the appointments — it is a revolutionary move in the Muslim world. A historic milestone for Malaysia. Now, Indonesia and Malaysia are allowing the judgement of women to prevail in Syariah courts where once it was completely taboo. And, no matter how careful the Islamic authority is to not allow a gender equality equation to develop from this episode, the fact remains that the decision is made and whatever initial premise determined that women cannot be leaders over the general population becomes obsolete. This long pursued eventuality shows Malaysia for what she is; a country where justice prevails. Women who are able will be given the recognition. That the announcement is made in the holy month of Ramadan, too, is significant. It is a generally held belief that what positive moves transpire during the fasting month augur well.