The Vulnerable Position of Women

D. The Vulnerable Position of Women

The setting to the arrangement of hudūd in modern times refers to the classical fiqh. The demands of times due to changes in the social system, politics, economics, law, and also the development of global ethics and human rights, including the Human Rights of Women, have led into the

169 One thing is certain that rajm is not typical of Islam, because long before Islam came rajm has been practiced by the previous divine religions and also the other great civilizations. In the analysis of the authors that there is no mention of rajm in al-Qur’an can be a very strong indicator that Islam wants to eliminate rajm. It is indeed very cruel and inhuman practice. Some scholars say that the rajm was included in Qur’anic kind of verses that denote mansukh at-tilawah ma’a Baqa’i al-hukmi (the recitations are abrogated while the laws remain). This theory is very strange, how comes a law whose text has been deleted be implemented? We do not deny some of the traditions of the Prophet still appreciate rajm. However, once again, according to the authors, the appreciation of the Prophet is a dialogue between civilizations of jahiliyyah (ignorance) and Islam which offers new values. Islam is about to remove the teachings of rajm gradually (tadrij), as the method of Islam in an effort to eliminate traditions contrary to the values of Islam as rahmat (blessing).

changing regulation in dealing with these two types of crime . One of the striking differences which exists between the paradigm of Islamic law and modern legal paradigm is the position of women. Gender equity and equality are the ethics of modern humans which up until now is being fought and has become part of the very fabric of modern civilization. Meanwhile, the classical Islamic law was formulated in Arabia in the medieval time where women were put in lower position.

Unequal gender relations causes gender injustice. There are five forms recognized as gender inequality, namely marginalization (through exclusion/ poverty), subordination (through being considered less important), stereotype or stigma (negative labeling), violence (both physical and mental) and the double burdens. 170 These five forms of injustice can occur in various aspects of life including the law. In the formulation of hudūd in Pakistan, Sudan, Kelantan Malaysia, and Brunei, it is found a form of gender inequality that puts women in a vulnerable position.

1. Marginalization Marginalization or exclusion of women occurs in a clause which specifies that women cannot be a witness, both for crimes to others as well as to themselves such asin the testimony of khamer, adultery and qadzaf in Pakistan

Proof of drinking liable to had.The proof of drinking liable had shall be in one of the following forms, namely:-

(a) at least two Muslim adult male witness, about whom the court is satisfied, having regard to the requirement of tazkiyah al-shuhood, that they are truthful persons and abstain from major sins (kabair), give evidence of the accused having committed the offence of drinking liable to had.

170 Mansour Fakih, Analisis Gender dan Transformasi Sosial (Yogyakarta: Pustaka Pelajar, 1997), pp. 12-23.

Proof of zina liable to had shall be in one of the following forms, namely:- (b) at least four Muslim adult male witnesses, about whom the Court is

satisfied, having regard to the requirements of tazkiyah al-shuhood, that they are truthful persons and abstain from major sins (kabair), give evidence as eye-widnesses of the act of penetration necessary to the offence:

Enakmen Kelantan Malaysia, in the ordinance khamer, adultery, and qadzaf, the same as Pakistan also exclude women as witnesses:

(The terms of a witness: (1) witness is a man who is Aqil baligh, Muslim, and fair. (Malaysia, Courant III Section 41)

The rules that ignore women’s testimony can result in inability of women to be witnesses to the crimes of hudūd regardless of their number. For example, women, in any number, cannot be witnesses to the crime of khamer, even when its consumption has caused mischiefs. Similarly, women in any number cannot be witnesses to the rape occurr in a girls’ dormitory although all the occupants see it. The same thing can happen to any woman where she cannot bear witness to the rapes that happened to her mother or her aunt, though she may see with her own eyes, nor can she be a witness to the rape upon herself. Women are deprived of their right to save themselves and women experiencing violence, whether physical, sexual, and others, as set forth in jinayat Islamic law in Pakistan and Malaysia.

2. Subordination and stigmatization The assumption that the value of women is less important than men

appears in the rules about women’s testimony which is considered half of men.

Brunei: Evidence of Qatlu Syibhil-’Amd that may be imposed diyat must be in ways that follows: (a) a pledge of the accused who confesses guilty willingly before the Court which has authority; (b) Syahadah of two male witnesses; (c) Syahadah of one male witness and two female witnesses; (d) Syahadah of one male witness and oath of the complainant (Part 141, as well on evidence of Qotlul-Khatha’ in the part 148).

Brunei: If Shahid comprised of a man and two women, and one female witness withdraws her testimony, she must pay compensation one quarter of the losses incurred by mahkum ‘alaihi, and if both of the female witnesses withdraw their testimony, they must pay compensation half the losses incurred by mahkum ‘alahi, and if the male witness withdraws the martyr his testimony, he must pay compensation half the losses incurred by mahkum ‘alaihi (Section 185, Explanation 3).

That the value of woman’s testimony is only half of men have ignored the fact that in modern states there are a lot of women whose authority is recognized by the state as judges in civil and criminal cases. This rule could lead to an occasion where a competent female judge in civil court whose testimony may later be recognized only half of the man who knows nothing about the law in Syari`ah court.

Rules about the value of women’s testimony as these contain negative outlook (stigma) that women are not capable to become a witness, even more in the criminal field. This stigmatization is certainly unacceptable when there is a fact that a woman is able to study law in college and even become a professor in the field of law, and hold a career as a professional judge whose authority is recognized. Rules containing the subordination of women are also found in the level of diyat. Diyat paid on women is half of men because of the pain borne by a family who lost a man who is considered more severe than the one who lost a woman.

3. Violence and Double Burdens Rules that can lead to violence and double burden on women, among

others, are when adultery is not differentiated from rape. Pakistan insists that others, are when adultery is not differentiated from rape. Pakistan insists that

Brunei also distinguishes between adultery and rape ( zina bil-jabar) with six conditions. It is a rape; if it is contrary to the willingness of the victim, if it is without the willingness of the victim, if the victim is threatened to

be killed or harmed, if it is in fraud, if the victim is disabled or drunk, if the victim cannot understand the situation or because the victim is not yet baligh or underaged.

Malaysia doesnot distinguish between adultery and rape. Some of the conditions in Pakistan and Brunei which are in the category of rape ( zina bil-jabar) are in the category of wati syubhah in Malaysia.

Wati syubhah is an intercourse which is performed by a man with a woman who is not his wife and intercourse is done: (a)

In dubious circumstances in which he thought that the woman is his wife, while she in fact not; or (b) In dubious circumstances in which he thought that his wedding with the

woman was legitimate by the law of Syari`ah, while in fact not. The condition without firm differentiation between adultery and rape

in jinayahSyari`ah may contain the potential violence to woman, because even when four witnesses required are presented before the court, she would still be charged with the punishment of adultery, rajm if she is married or whipped 100 times if she is not married . Moreover, if she is not able to bring witnesses, she would be stoned if she is not married, whipped 100 times if she is not married for committing adultery, whipped 80 times for in jinayahSyari`ah may contain the potential violence to woman, because even when four witnesses required are presented before the court, she would still be charged with the punishment of adultery, rajm if she is married or whipped 100 times if she is not married . Moreover, if she is not able to bring witnesses, she would be stoned if she is not married, whipped 100 times if she is not married for committing adultery, whipped 80 times for

The case of Zarfan Bibi in Pakistan and Bariya Ibrahim Magazu in Zamfara, Nigeria, are blatant examples about this.

When her husband was jailed for murder, her brother in-law repeatedly raped her resulting in her pregnancy. She reported the crime of rape and in the end was brought to trial on charges of adultery. While the rapist was free of charge because of insufficient evidence, Zarfan was sentenced by court in April 2002. 171

In September 2000 in Zamfara, a 17-year-old pregnant girl, Bariya Ibrahim Magazu, who reported her rape, was sentenced to 180 lashes for committing and Qadzaf. This ruling was executed on January 9, 2001, after Bariya gave birth to a baby. 172

Zarfan Bibi and Baria Ibrahim Magazu experienced double burdens in the form of the assumption that the victim was not innocent, therefore the victim was once again being sacrificed (this is re-victimization). They both bear the brunt of sexual relationship they did not want (the rape), pregnancy, and whipping even rajm. While perpetrators of the rape remain free because the rape generally occurs in a quiet place so that the proving procedures are difficult to meet. They can freely repeat the same actions to the other new female victims who may not be aware of the danger of rape.

The difficulty to provethe rape also causes woman to remain in a vulnerable position to violence despite being in a country that sharply distinguishes between adultery and rape. This difficulty happens because of so many reasons, among them:

171 Taufik dan Samsu, Politik Syariat Islam, p. 146. 172 Taufik dan Samsu, Politik Syariat Islam, p. 130 .

1. Proof is charged against the victim and not to the perpetrator. Rape victims in general are in a traumatic psychological condition making it difficult to testify, let alone find a witness.

2. Victims of rape, since women’s testimony is not recognized, or acknowledged only half of that of men, so that female witnesses are not adequate in front of the judges compared to four male witnesses.

3. Rape should be determined by post mortem visum by medical doctors. However, in practice many physicians only come to the description of injury, without further assessment that the injury might have occurred as

a result of force or rape.

4. The threat of punishment to qadzaf (false accusation of zina) makes rape witnesses afraid to give their voice, so they choose silence in order to be safe.

5. There is a stigma about woman in general as a teaser so that a rape victim is not believed to have suffered rape, but being regarded as having consensual action, even if the active one is actually the man.

The rules about adultery and qadzaf are rules that relate directly to gender relations. Under the rules, it is clearly seen how the perspective of society, the state, and religious leaders, influences the weak position of women in law. Patriarchal traditions that exist everywhere must be wary in the application of the law, including religious one.

If we look at the implementation of hudūd in the modern state, we can see the trend is generally referring to the formulation of classical fiqh, which of course in the end also refers to the Qur’an and Hadith. Despite the span of time between classical scholars and the Prophet, differences in social context are not that sharp as in this modern era. For example, gender relation in the Middle East, especially Saudi Arabia, in some respects has shifted, but in general, particularly in public spaces, the shift is still not as fast as in other Muslim countries. In Indonesia, for example, many women have become judges in religious court, besides of course in general court. Meanwhile, given the position of women in classical fiqh, in reference to the implementation of hudūd, it seems improbable that they may be elected as If we look at the implementation of hudūd in the modern state, we can see the trend is generally referring to the formulation of classical fiqh, which of course in the end also refers to the Qur’an and Hadith. Despite the span of time between classical scholars and the Prophet, differences in social context are not that sharp as in this modern era. For example, gender relation in the Middle East, especially Saudi Arabia, in some respects has shifted, but in general, particularly in public spaces, the shift is still not as fast as in other Muslim countries. In Indonesia, for example, many women have become judges in religious court, besides of course in general court. Meanwhile, given the position of women in classical fiqh, in reference to the implementation of hudūd, it seems improbable that they may be elected as

Indonesian Constitution views that every citizen, either man or woman, is equal before the law. There are at least 40 types of the constitutional rights of every citizen of Indonesia, for both men and women, distributed in 14 clusters, namely the right to a nationality, the right to life, the right to develop themselves, the right to freedom of thought and freedom of choice, the right to information, the right to work and to a decent living, the right to property and housing, the right to health and a healthy environment, the right to a family, the right to legal certainty and justice, the right to be free from threats, discrimination, and violence, the right to protection, right to fight rights, and the right to rule.

Equality of gender relations in the Indonesian Constitution in more detail contains in:

1. The right to legal certainty and fairness which include: the right to recognition, security and the protection and legal certainty on Article 28

D (1), the right to equal treatment before the law on Article 28 D (1), Article 27 ( 1), and the right to be recognized as a person before the law under Article 28 I (1).

2. The right to be free from threats, discrimination, and violence which include the right to feel safe and being protected from the threat of fear to do something which is a fundamental right in Article 28 G (1), right to freedom from torture or degrading treatment to humanity at Article

28 G (2).

3. The right to be free from discriminatory treatment on any basis in Article 28 I (2), the right to have the ease and special treatment to obtain the same opportunities and benefits in order to achieve equality and justice in Article 28 H (2).4. The right to protection which includes the right to protection of self, family, honor, dignity, and property under 3. The right to be free from discriminatory treatment on any basis in Article 28 I (2), the right to have the ease and special treatment to obtain the same opportunities and benefits in order to achieve equality and justice in Article 28 H (2).4. The right to protection which includes the right to protection of self, family, honor, dignity, and property under

4. Constitutional guarantee of the Republic of Indonesia as stipulated in the 1945 Constitution affirms that Indonesia holds the view of equality between citizens of both men and women in various fields including in the field of law. Therefore, it is important to see how the Islamic criminal law applied in Aceh as one of the provinces in Indonesia which has referred to the formulation of classical fiqh in their provincial regulations.

Sisters in Islam (SIS) Malaysia notices the vulnerable position of women and non-Muslims in Islamic criminal law applied in Kelantan. This vulnerable position could actually occur in the application of Islamic criminal law in a modern country that embraces the democratic system. The vulnerable positions of women, among others, are in the pre-assumption of adultery which occurs in the community, women not being recognized as witnesses, dissolution of marriage through oath of li’an, the value of diyat compensation for women who were murdered. 174